John Doe No. 2 v. Boy Scouts of America

2016 IL App (1st) 152406
No. 1-15-2406
Fifth Division
September 30, 2016
______________________________________________________________________________

IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________

)
JOHN DOE NO. 2, JOHN DOE NO. 3, ) Appeal from the Circuit Court
JOHN DOE NO. 4, JOHN DOE NO. 6, ) of Cook County.
JOHN DOE NO. 7, JOHN DOE NO. 8, )
JOHN DOE NO. 9, JOHN DOE NO. 10, ) No. 2012 L 13569
JOHN DOE NO. 11, JOHN DOE NO. 12, )
JOHN DOE NO. 13, JOHN DOE NO. 14, ) The Honorable
JOHN DOE NO. 15, JOHN DOE NO. 16, ) Moira S. Johnson,
JOHN DOE NO. 17, and JOHN DOE NO. 18, ) Judge Presiding.
)
Plaintiffs-Appellees, )
)
v. )
)
BOY SCOUTS OF AMERICA, a Congressionally )
Chartered Corporation, Authorized to Do Business )
in Illinois; CHICAGO AREA COUNCIL, INC., )
BOY SCOUTS OF AMERICA; and CHICAGO )
AREA COUNCIL, BOY SCOUTS OF )
AMERICA, INC., )
)
Defendants-Appellants. )
)
______________________________________________________________________________

PRESIDING JUSTICE GORDON delivered the judgment of the court, with opinion.
Justice Reyes concurred in the judgment and opinion.
Justice Lampkin dissented, with opinion.

OPINION

¶1 In 2013, plaintiff John Doe 2 joined an existing lawsuit against defendants Thomas

Hacker, Boy Scouts of America (BSA), and the Chicago Area Council (CAC), as 1 of 18
 No. 1-15-2406

plaintiffs alleging that they were sexually abused as children by Hacker, their former

scoutmaster in the Boy Scouts. 1 The present appeal involves the claims of plaintiff Doe 2

only (plaintiff). In addition, Hacker was voluntarily dismissed as a defendant from the

lawsuit, so that only the Boy Scout defendants remain.

¶2 In the current third amended complaint, plaintiff alleges that defendants BSA and

CAC (the Boy Scout defendants) knew that Hacker had sexually abused Boy Scouts as a

scoutmaster long before his abuse of plaintiff, but they nevertheless allowed Hacker to serve

as the scoutmaster for plaintiff’s troop, where he sexually abused plaintiff from 1983 to 1986.

It is undisputed in this lawsuit that Hacker abused plaintiff at official Boy Scout events and

outings between 1983 and 1986. Plaintiff alleges counts of negligence, fraudulent

concealment of claims, and equitable estoppel against the Boy Scout defendants.

¶3 The Boy Scout defendants moved for summary judgment against plaintiff, claiming

that plaintiff’s action against them was time-barred under the two-year statute of limitations

for personal injury actions. In response, plaintiff argued that his claim was timely under the

fraudulent concealment statute (735 ILCS 5/13-215 (West 2012)), where the Boy Scout

defendants had concealed their knowledge of Hacker’s conduct, thereby concealing their

liability for Hacker’s actions. The trial court denied the Boy Scout defendants’ motion for

summary judgment, but upon their motion, certified a question for interlocutory review to

this court under Illinois Supreme Court Rule 308 (eff. Jan. 1, 2015).

¶4 The trial court certified the following question to this court:

“Does the fraudulent-concealment statute of limitations permit a plaintiff to

maintain an otherwise time-barred action for child sexual abuse when he testifies that

1
Two of the 18 plaintiffs have settled their claims, and 16 plaintiffs remain in the pending suit
against defendants.

2
 No. 1-15-2406

he knew, before the action was time-barred, that he had sustained a physical injury

from the abuser’s conduct and that the abuser had been arrested and tried for similar

crimes?”

¶5 The word “permit” means “to allow” or “to make something possible.” Merriam-

Webster Online Dictionary, http://www.merriam-webster.com/dictionary/permit (last visited

Sept. 29, 2016). Thus the question asks to decide whether a suit is possible under the stated

conditions.

¶6 In sum, a “no” answer to the above question would mean that, as a matter of law, a

plaintiff’s knowledge that he had sustained a physical injury and that his abuser was arrested

and tried for similar crimes, would bar a plaintiff from invoking the fraudulent concealment

statute under all circumstances and against any party who could be potentially liable. We

cannot agree with this proposition.

¶7 As a result, and for the following reasons, we answer “yes” to the certified question.

¶8 BACKGROUND

¶9 I. Procedural History

¶ 10 In 2013, shortly before turning 40, plaintiff joined this existing case as an additional

plaintiff. The current third amended complaint, filed May 28, 2015, includes counts of

negligence, fraudulent concealment of claims, and equitable estoppel against the Boy Scout

defendants. In the complaint, plaintiff alleges that defendant BSA knew that Hacker was a

serial pedophile by 1970, when he was first banned from scouting. Nevertheless, defendant

BSA allowed Hacker to register with defendant CAC in 1984, where he sexually abused

plaintiff. Plaintiff alleges that the Boy Scout defendants were aware, long before plaintiff

entered scouting, that there was a longstanding and widespread problem of adult scout

3
 No. 1-15-2406

leaders sexually abusing minor scouts and that their system for banning pedophiles (the IV

files) was not working. Plaintiff alleges that the Boy Scout defendants negligently failed to

protect him from Hacker’s abuse, fraudulently concealed all of the above knowledge, and

represented to plaintiff that scouting was a safe activity for boys. Plaintiff further alleges that

defendant BSA stood in a special, fiduciary relationship with him, such that the Boy Scout

defendants had a duty to disclose this knowledge and their culpability for his abuse.

¶ 11 The Boy Scout defendants moved for summary judgment against plaintiff on

September 12, 2014. 2 Claiming that plaintiff had acknowledged knowing of the

wrongfulness of his abuse and at least some of his resulting injuries at the age of 14, the Boy

Scout defendants argued that his two-year limitations period for filing suit had been tolled

only during the time he was a minor. Because it began to run when he turned 18, the Boy

Scout defendants argued, the limitations expired when plaintiff turned 20, nearly 20 years

before he filed his claim.

¶ 12 In response, plaintiff argued that the Boy Scout defendants had fraudulently

concealed his cause of action, which had tolled the statute of limitations until late 2012.

Plaintiff argued that the Boy Scout defendants’ affirmative representations that they did not

know of Hacker’s past history of abuse constituted fraudulent concealment. Plaintiff further

argued that, even in the absence of these affirmative acts, defendants’ silence constituted

fraudulent concealment because they were in a special relationship with him while he was a

boy scout and had thus been obligated to inform him of “his cause of action.” Because of this

fraudulent concealment, plaintiff argued that his claim was timely, as the five-year

2
As noted above, the current third amended complaint was filed on May 28, 2015. The Boy Scout
defendants’ motion for summary judgment was based on the first amended complaint, which was
filed on August 7, 2013. The counts and allegations in both complaints are essentially the same.

4
 No. 1-15-2406

limitations period provided by the fraudulent concealment statute had started running only in

late 2012, shortly before he first learned of his cause of action after viewing publicized

Perversion Files.

¶ 13 The trial court denied the Boy Scout defendants’ motion for summary judgment on

January 8, 2015. The report of proceedings shows that the trial court concluded that there

was a genuine issue of material fact as to whether defendants were in a special relationship

with plaintiff, such that they had been required to tell him of his potential claim against them.

CAC filed a motion to reconsider denial of its motion for summary judgment on April 20,

2015, which the trial court denied.

¶ 14 The Boy Scout defendants filed a motion to certify a question for interlocutory review

under Illinois Supreme Court Rule 308 (eff. Jan. 1, 2015) on June 12, 2015. On June 30,

2015, the trial court denied the Boy Scout defendants’ motion to certify a question for

interlocutory review without prejudice. On July 10, 2015, the Boy Scout defendants filed an

amended motion to certify a question under Illinois Supreme Court Rule 308 (eff. Jan. 1,

2015). On August 17, 2015, the trial court granted the Boy Scout defendants’ amended

motion. On August 31, 2015, the trial court certified the following question to this court:

“Does the fraudulent-concealment statute of limitations permit a plaintiff to

maintain an otherwise time-barred action for child sexual abuse when he testifies that

he knew, before the action was time-barred, that he had sustained a physical injury

from the abuser’s conduct and that the abuser had been arrested and tried for similar

crimes?”

The same day, defendants filed a petition for leave to appeal to this court. We granted the

petition on September 30, 2015. As noted above, defendant Hacker was voluntarily

5
 No. 1-15-2406

dismissed from this lawsuit, and the only remaining claims are against defendants BSA and

CAC for negligence, fraudulent concealment and equitable estoppel.

¶ 15 On May 12, 2016, plaintiff filed a motion to strike portions of the Boy Scout

defendants’ brief and to supplement the record on appeal. In this motion, plaintiffs argued

that a significant portion of the Boy Scout defendants’ brief in support of its Rule 308 appeal

contains argument without any factual support or citation to the record, in violation of Illinois

Supreme Court Rule 341 (eff. Jan. 1, 2016). Specifically, plaintiff argued that the Boy Scout

defendants’ brief references cases of other boy scouts against defendants to argue that

plaintiff should have known of his cause of action earlier but that the Boy Scout defendants

refuse to disclose the identity of such cases. We granted plaintiff’s motion to strike on May

19, 2016, and struck all portions of the Boy Scout defendants’ brief not supported by the

record on appeal.

¶ 16 Below we provide only a summary of the extensive discovery and exhibits that are

part of this record on appeal.

¶ 17 II. Structure of BSA and CAC

¶ 18 According to defendant BSA’s charters and bylaws, 3 defendant BSA is organized

with a national office in Irving, Texas (the National Council). The National Council grants

charters to local councils in every state, and these councils oversee Boy Scout operations on a

regional basis. Defendant CAC is one such local council and was responsible for the scouting

program in a large part of the Chicago metropolitan area in the 1980s. The head of each local

council is called a scout executive. A local council, in turn, is comprised of charter

organizations, usually churches, schools, or other civic organizations, which sponsor and

3
Defendant BSA’s charters and bylaws are attached as exhibit No. 2 to plaintiff’s response to
defendants’ motion for summary judgment.

6
 No. 1-15-2406

form Boy Scout Troops or Cub Scout Troops. For example, the charter organization that

sponsored Troop 1600—plaintiff’s troop—was St. Louis De Montfort Catholic Church in

Burbank, Illinois.

¶ 19 According to defendant BSA’s rules and regulations, 4 its bylaws require its local

councils, such as defendant CAC, to abide by the policies, procedures, rules and regulations

of defendant BSA. In order for defendant CAC to receive a charter from defendant BSA, it

had to agree to abide by defendant BSA’s policies and procedures. Defendant BSA’s bylaws

and Procedures for Maintaining Standards of Leadership specify its rights to review, approve

or remove scout leaders. As the 1982 Procedures for Maintaining Standards of Leadership 5

instructed:

“No person shall be approved as a leader unless, in the judgment of the

corporation, that person possesses the moral, educational, and emotional qualities

deemed necessary for leadership and satisfies such other leadership qualifications as

it may from time to time require.”

¶ 20 In his deposition, 6 James Terry, former assistant chief scout executive of defendant

BSA, testified that defendant BSA relies on its local councils, such as defendant CAC, and

on sponsoring organizations to act on its behalf and carry out defendant BSA’s rules,

regulations, policies, and procedures. Defendant BSA also relies on local councils to monitor

and report suspected child sexual abuse in accord with its policies and procedures. A

4
The Boy Scouts of America Rules and Regulations, dated 1986, is attached as exhibit No. 1 to
plaintiff’s response to defendants’ motion for summary judgment.
5
The Procedures for Maintaining Standards of Leadership is attached as exhibit No. 4 to
plaintiff’s response to defendants’ motion for summary judgment.
6
A transcript of the videotaped deposition of James Terry, May 21, 2013, in the matter of L.M. v.
Boy Scouts of America, No. 11-2-18616-4 SEA (Wash. Super. Ct.), is attached as exhibit No. 3 to
plaintiff’s response to defendants’ motion for summary judgment.

7
 No. 1-15-2406

chartered organization works for the local council, and the local council in turn reports to the

National Council.

¶ 21 III. The IV Files

¶ 22 According to the affidavit of Martin Walsh, 7 manager of the Membership Impact

Department of defendant BSA as of 2012, defendant BSA has maintained an “Ineligible

Volunteer” file system (the IV files) since approximately 1920. 8 The IV files are a

centralized file system that records adults whom, for various reasons, defendant BSA

considers ineligible for membership positions. The IV files collect identifying information on

such adults. The purpose of the IV files is to prevent these individuals from registering with

any scouting organization in the future. According to a 1935 New York Times article, 9 in the

first 15 years after defendant BSA created the IV file system, a total of 2919 men were

placed in the files, and about 30% of those men had engaged in sexual misconduct with

scouts.

¶ 23 According to Walsh’s affidavit, defendant BSA’s IV file system contains a list of the

names of banned volunteers and BSA employees who can be cross-referenced to an IV file

under the same name. The IV file, in turn, contains detailed information on why the person is

banned from scouting. There are different categories of IV files, including those labeled

“Perversion,” which relate to adult leaders’ sexual misconduct. The Boy Scout defendants

7
All references to the affidavit of Martin Walsh refer to the affidavit of Martin Walsh, filed by
defendant BSA on January 17, 2012, in the matter of B.M. v. Boy Scouts of America, No. CDV-11-
0782 (D.C. Mont.), which is attached as exhibit No. 15 to plaintiff’s response to defendants’ motion
for summary judgment.
8
The file system was originally called the “Red Flag” files. Later, the name was changed to the
“Confidential Files,” and now defendant BSA refers to them as the “Ineligible Volunteer files.”
9
The article (Boy Scouts Head Explains “Red” List, New York Times, June 9, 1935), is attached
as exhibit No. 16 to plaintiff’s response to defendants’ motion for summary judgment.

8
 No. 1-15-2406

have disclosed their Perversion Files 10 for the time period of 1960-90. 11 The disclosed

Perversion Files reflect that defendant BSA created at least 2549 files on the sexual

misconduct of adult leaders between 1960 and 1990. Many of the disclosed files include

identifying information of scout leaders, like Hacker, who had abused numerous children. In

1988, the year of Hacker’s arrest, defendant BSA created 314 files for adult volunteers

engaging in sexual misconduct with scouts.

¶ 24 According to Walsh’s affidavit, defendant BSA closely guarded the existence and

content of the IV files. Defendant BSA employed just a few people in its central headquarters

to manage the IV file system, including a director-level position whose primary

responsibility was to maintain the files. In a deposition, 12 Paul Ernst testified that he held the

title of BSA’s director of Registration and Subscription Services from 1971-93. In his

deposition in the present matter, 13 Ernst testified that an integral part of his responsibility as

director was to maintain the IV file system and keep it updated. Ernst testified that it is

10
The “Perversion Files” is defendants’ shorthand for the subset of the IV files that involve sexual
misconduct by adult leaders.
11
As discussed below, BSA’s Perversion Files for 1965-85 were made public pursuant to a court
order from the Honorable John Wittmayer, Multnomah County Circuit Judge for the State of Oregon,
in the case of Lewis v. Boy Scouts of America, No. 0710-11294 (Cir. Ct. Multnomah Co.). The
Oregon Supreme Court upheld the order in Jack Doe 1 v. Corp. of the Presiding Bishop of the Church
of Jesus Chris of Latter-Day Saints, 280 P.3d 377, 380 (Or. 2012). The files are available online at
http://crewjanci.com/resources/boy-scout-perversion-files/ (last visited July 20, 2016). Defendants
have conceded in the case at bar that these publicly available files are true and accurate copies of
BSA’s Perversion Files for the time period of 1965-85, and for portions of 1960-64. In response to an
order of the trial court in the present case, BSA produced a total of 1225 Perversion Files for 1986-90.
Plaintiff has included a sample of these Perversion Files as exhibit No. 21 to its response to
defendants’ motion for summary judgment.
12
A transcript of the video deposition of Paul Ernst, taken in the matter of NK v. Corp. of the
Presiding Bishop of the Church of Latter-Day Saints, No. 09-2-41575-7 KNT (Wash. Super. Ct.), is
attached as exhibit No. 11 to plaintiff’s response to defendants’ motion for summary judgment.
13
All remaining references to the deposition of Paul Ernst refer to the “Videotaped Oral
Deposition” of Paul Ernst, dated April 14, 2014, taken in the present matter. A transcript of this
deposition is attached as exhibit No. 23 to plaintiff’s response to defendants’ motion for summary
judgment.

9
 No. 1-15-2406

defendant BSA’s policy to require all adult leaders to register each year with the

organization. All of these registrations were processed through Ernst’s office during his

tenure as director. Each adult registration during Ernst’s tenure was checked yearly against

the IV files. In his deposition, Ernst testified that access to the IV files was very limited:

“Q. Who had access to the file cabinet?

A. I did, of course. And we had a couple of employees who worked on these that

had access, but it was very limited.”

¶ 25 The Boy Scout defendants’ disclosed Perversion Files show that in 1972, shortly after

Ernst took charge of BSA’s IV files, he sent a “personal and confidential” letter from

defendant BSA’s headquarters to “all Scout executives” with the subject “Maintaining

Standards of Leadership.” In this letter, Ernst informed scout executives that he was

enclosing guidelines that were “carefully developed” by defendant BSA to establish the kind

of people who were safe to be scout leaders. He further described the confidential nature of

such information:

“This is the first time such information has been printed and because of the

misunderstandings which could develop if it were widely distributed, we suggest that

after you have read it, you file it with other policy statements without making

photocopies or sharing it beyond the top management of the council.”

Ernst’s memorandum outlined the manner in which local councils should report accusations

“that would seem to cause [a leader] to be unfit as a leader or an associate of boys.”

¶ 26 According to Walsh’s affidavit, although scout executives at the local council level

know of the existence of the IV files, they do not have access to the files. Their role is to

compile supporting documents and forward them to defendant BSA to be placed in a

10
 No. 1-15-2406

particular adult leader’s file. According to Ernst’s deposition, local sponsoring or charter

organizations, such as the churches and schools, did not have any access to the files during

his tenure (1971-93), nor did they have any role in formally providing any documents to

defendant BSA for inclusion in any file. Additionally, according to the trial testimony of

Nathaniel Marshall, 14 who was senior membership administrator for defendant BSA as of

March 4, 2010, defendant BSA never told troop volunteers or Scouts’ parents about the

existence of the files.

¶ 27 The disclosed Perversion Files contain a letter from Ernst to Ralph S. Kroehler, a

council executive, dated December 15, 1981, regarding a reported sexual predator in which

Ernst wrote:

“Please send me the details which you have in your files. We have always asked

that all the records in this type of situation be kept in the national office and not in the

local council office because of the embarrassment that could be incurred if the wrong

individuals would read the file.”

¶ 28 The disclosed Perversion Files contain another letter from Paul Ernst, dated

November 25, 1985, in which Ernst wrote: “The [IV files are] kept very confidential in this

office, since we allow only three individuals to have access.”

¶ 29 IV. Evidence of Child Abusers Circumventing the IV File System Before 1983

¶ 30 The disclosed Perversion Files show that defendant BSA had knowledge before 1983

(the year in which Hacker began abusing plaintiff) of how banned sexual predators were

finding ways around the IV system, reentering scouting and continuing to sexually abuse

14
The trial testimony of Nathaniel Marshall in Lewis v. Boy Scouts of America, No. 0710-11294
(Cir. Ct. Multnomah Co.) is attached as exhibit No. 20 to plaintiff’s response to defendants’ motion
for summary judgment.

11
 No. 1-15-2406

children. For example, the disclosed Perversion Files contain a record of a scoutmaster who,

after being removed from scouting in 1972 for sexually abusing boy scouts, was able to move

to a new location and reregister as a scout leader, where he sexually abused more boys before

his arrest in 1977. Other examples in the disclosed Perversion Files show that flagged sexual

predators were able to reregister as “multiples” in the 1970s and 1980s. A “multiple” is a

banned individual who, at a new location, lies and says that he is registered with another

troop or local council. Lastly, defendant BSA also had knowledge before 1983 that sexual

predators were circumventing the IV system by changing their names or using aliases. For

instance, the files show that in 1968 defendant BSA learned that a man who was removed

from scouting in 1965 for sexually abusing boys had been able to abuse boys in a different

council by changing his middle initial. In his response to the Boy Scout defendants’ motion

for summary judgment, plaintiff provided additional examples of sexual predators

successfully circumventing the IV file system.

¶ 31 The disclosed Perversion Files contain an internal memorandum from a scout

executive to Ernst, dated September 26, 1984, in which the scout executive wrote:

“I am never quite clear on how we should communicate with you about people

who we won’t readmit into professional scouting.

[Name of banned pedophile] is the kind of person my instinct tells me might very

well attempt to resurface somewhere as a volunteer.

If you agree you need to place info about him in your files—how much more

information do you need?

I really think we should spend some time discussing cases like this and how we

should feed info to you—so we can prevent people like this guy from slipping in as

12
 No. 1-15-2406

volunteers. To my knowledge, there is no written guideline for either of us to follow.

Let me know if you agree that a meeting is in order, and lets [sic] set a time.”

¶ 32 V. Hacker’s History of Child Abuse Prior to 1983

¶ 33 Defendant BSA created an IV file for Hacker in 1970. 15 A 1988 newspaper article 16

in Hacker’s IV file summarizes Hacker’s history of child sexual abuse. The accuracy of the

article is supported by letters written by and to defendant BSA in Hacker’s IV file. According

to the article, Hacker was arrested and charged with assault and battery in Indiana in 1961,

after individual boy scouts told their parents that Hacker had entered their tents at night on a

campout. Although the charges were dismissed, Hacker was discharged from his teaching

position at the time and was suspended as scoutmaster. Hacker was reinstated as scoutmaster

after his trial. Hacker held positions in the Indiana public school system and at BSA for the

rest of the 1960s.

¶ 34 Hacker’s IV file contains a letter dated February 26, 1970, from Frank M. Chase,

scout executive of the Central Indiana Council at the time, to Ernst’s predecessor, Earl L.

Krall, director of BSA’s Registration & Fulfillment Service at the time. The letter reported

three adult leaders, including Hacker, for inappropriate behavior. Chase related that Hacker

had been accused of molesting local children and should not remain a member of defendant

BSA:

“In addition, I would like to report on Thomas E. Hacker, who has really caused a

storm in our council and in Indianapolis. He was registered as a Scoutmaster in the

Mt. Olive Methodist Church in the West District a few years ago; we had reports

15
Hacker’s IV file is attached as exhibit No. 24 to plaintiff’s response to defendants’ motion for
summary judgment.
16
Suspect in child molesting able to keep past hidden, Daily Southtown, 1988.

13
No. 1-15-2406

there was a problem. He was removed as Scoutmaster of that troop, but we could not

secure anything definite from parents or boys on which we could act. Mr. Hacker was

taken to court and released because parents did not appear against him and there was

lack of sufficient evidence. At the time, a prominent member of my board called me

to say that he knew the family, that Tom was a fine young man, and asked that he not

be placed on our ‘red flag’ list [i.e., IV file system]. Because of no concrete evidence,

at the time, we did not do this for which I have had many hours of regret.

Also, at the time Mr. Hacker was a bachelor. He moved to Charlottesville on the

east edge of Hancock County, married (in fact he now has two sons), then moved

back into the city in the school system on the east side, and, frankly, with over 9,000

leaders and not being close to many of them, we made the mistake of not banning

Tom from leadership in our council. In 1964, he did register as an Assistant

Scoutmaster in one of the finest troops on the far east side of Marion County. He

served two years there, and then he dropped out or was asked to drop out. If he was

asked to leave, we did not receive any information of anything wrong at the time. In

October of 1968, he registered as Scoutmaster of another troop on the far east side of

Indianapolis. The District Executive became suspicious a couple of months ago, and

he finally met with the Troop Committee and Hacker was asked to resign. We were

placing him on our ‘red flag’ list when everything broke. I am enclosing the two

newspaper clippings which give the story. This man should not be allowed to register

in the Boy Scouts of America at any time or any place.”

14
 No. 1-15-2406

Hacker’s IV file contains the newspaper article referred to in the above letter. 17 The

newspaper article reported that police had compiled a list of 51 names of boys whom Hacker

allegedly molested as a schoolteacher in Indianapolis and that Hacker had been indicted on a

charge of assault and battery to gratify sexual desires.

¶ 35 Hacker’s IV file contains return correspondence dated March 18, 1970, from Krall to

Chase, in which Krall confirmed receipt of the letter and newspaper article about Hacker’s

child molestation charges. Krall wrote: “We have placed this information in our file and have

taken steps to have [the names of Hacker and two others] deleted from our records.” In the

correspondence, Krall also requested that Chase fill out a “confidential record sheet” for

Hacker and the two other men. He explained: “[These sheets] will enable us to identify all

three men, should they ever again attempt to register in the Scouting program.”

¶ 36 Hacker’s IV file contains Hacker’s confidential record sheet, which is dated June 8,

1970, and signed by Chase. The sheet notes that Hacker had been a scoutmaster for a troop in

Indianapolis from October 1967 to March 1970 and describes the reason for creating an IV

file on Hacker:

“Arrested for homosexual activity with many boys both in scouting and through

the school in which he was teaching. Grand jury has indicted him. Trial to be

conducted in August, 1970. He has resigned his teaching position.”

¶ 37 In return correspondence from Krall to Chase, dated June 15, 1970, Krall confirmed

receipt of the confidential record sheet on Hacker and requested that Chase write him again

to notify him of the outcome of Hacker’s trial. The record does not contain a response from

Chase.

17
List of Boys Allegedly Molested By Teacher Grows to 51 Names, 1970 (publication
unknown).

15
 No. 1-15-2406

¶ 38 Hacker’s police record 18 shows that he pled guilty in 1970 to assault and battery with

the intent to gratify sexual desires. A judge in Indianapolis gave him a one- to five-year

suspended sentence and two years of probation.

¶ 39 Hacker’s IV file contains a letter, dated October 27, 1971, by Arthur J. Allen, scout

executive of the Northwest Suburban Council (local council for the northwest suburbs of

Chicago), in which he wrote to Ernst, who had just become the supervisor of BSA’s

Registration and Membership, that Hacker had molested a child in Des Plaines, Illinois:

“Mr. Thomas Edwards *** is currently registered as District Publicity Committee

Chairman, and Scoutmaster of Troop #117, Northwest Suburban Council.

Within the last week, it has come to our attention, that Mr. Edwards has been

arrested on charges of taking indecent liberties with a child. Mr. Thomas Edwards is

also known as Mr. Thomas Hacker.

We have also been able to learn that Mr. Edwards was very active in Scouting in

the Central Indiana Council, Indianapolis, Indiana.

Enclosed you will find a photocopy of a local news article pertaining to the

incident.

We have removed Mr. Edwards from both Scouting capacities locally, and would

appreciate any additional information or guidance that you might be able to provide.”

¶ 40 Hacker’s IV file contains a reply letter from Ernst to Allen dated November 2, 1971:

“Thank you for your letter of October 27 concerning Thomas Edwards. You have

uncovered the case of a furtive individual who has successfully attained registration

18
All references to Hacker’s police record refer to the information from the State Police file
regarding Hacker, which is attached as exhibit No. 45 to plaintiff’s response to defendants’ motion for
summary judgment.

16
 No. 1-15-2406

in the Boy Scouts of America by changing his name. We have had Mr. Thomas E.

Hacker on the Confidential File since June, 1970 for exactly the same reasons you

presented.

Under no circumstances do we want this man registered in Scouting. We are

taking steps to have his name deleted from our records and adding the additional

information you sent to his file.”

¶ 41 Hacker’s police record shows that he was convicted in Cook County of taking

indecent liberties with a child on November 23, 1971.

¶ 42 Hacker’s police record shows that the Oak Lawn police department arrested him on

June 19, 1976, for grabbing a victim, throwing him down on the floor, and pulling his pants

down.

¶ 43 VI. Hacker’s Abuse of Plaintiff

¶ 44 In his affidavit, 19 plaintiff averred that he joined the Boy Scouts in the fall of 1983 at

the age of 10. He was a scout in Troop 1600. Plaintiff joined the Boy Scouts because many of

his friends were involved, and because his parents thought that the organization would instill

positive values in him and offer a safe, social activity. When he joined the troop, plaintiff

received a copy of the Official Scout Handbook (the handbook). The handbook instructed

scouts on a variety of topics. It contained the scout oath and guidelines for living a healthy

and moral life. The handbook functioned as a guide for helping a boy become a man. It

instructed plaintiff and other scouts about the importance of a scoutmaster. It indicated that

plaintiff could look to his scoutmaster for advice. The handbook’s references to the

importance of the scoutmaster made it clear to plaintiff that he should trust and be loyal to his

19
All references to plaintiff’s affidavit refer to the affidavit of plaintiff attached as exhibit No. 27
to plaintiff’s response to defendants’ motion for summary judgment.

17
 No. 1-15-2406

scoutmaster. Plaintiff was loyal to his scoutmaster and trusted the Boy Scouts when he

joined. He took the scout oath seriously, and obeyed scout law to the best of his ability. He

was obedient to his superiors, including his scoutmaster. Plaintiff averred that nothing in the

handbook, or any other instruction that plaintiff was given, provided him with information

about protecting himself from sexual abuse; nothing in the handbook provided any warning

or history of sexual abuse of scouts by adult leaders.

¶ 45 Plaintiff averred in his affidavit that Hacker became his scoutmaster shortly after

plaintiff joined the troop. Hacker accompanied the troop on virtually every scout outing, and

acted in a friendly, cordial way toward plaintiff upon meeting him. Hacker initially behaved

like a friend that plaintiff felt he could trust, matching the handbook’s description of a

scoutmaster. Plaintiff’s affidavit stated that both plaintiff and his parents trusted Hacker

because he was scoutmaster and because he was an important leader in the troop. Plaintiff

believes that his parents trusted Hacker and considered scouting to be a safe activity because

they would not have let him participate in activities that they did not deem to be safe.

Plaintiff also averred that his parents believed that Hacker was a vetted and trustworthy

leader in the Boy Scouts because of his prominent role in the organization. Plaintiff did not

believe that Hacker would harm him, given Hacker’s role in scouting. Plaintiff averred that

plaintiff’s parents would not have allowed him to participate in scouting or be alone with

Hacker if they had known that he sexually abused children in Indiana and the Northwest

suburbs of Chicago.

18
 No. 1-15-2406

¶ 46 As we observed earlier, it is undisputed that Hacker sexually abused plaintiff between

1983 and 1986 at official Boy Scout events and outings. In his deposition, 20 plaintiff testified

that Hacker’s abuse started gradually, but became very aggressive. The sexual abuse included

Hacker’s fondling of plaintiff’s genitals, mutual masturbation, oral sex and anal rape.

Plaintiff estimated that Hacker abused him on 100 occasions. Plaintiff experienced intense

physical pain during Hacker’s first act of anal penetration and bled afterwards. Some of

Hacker’s sexual abuse of plaintiff occurred in a group setting, with other boy scouts present.

During the period of Hacker’s abuse, plaintiff experienced extreme emotional distress and

physical pain. He testified that, at one point, Hacker threatened to kill his parents. Hacker’s

sexual abuse of plaintiff ended sometime in 1986.

¶ 47 In defendant BSA’s response to plaintiff’s third request to admit, (1) defendant BSA

admitted that it had received a charter renewal overflow page from Boy Scout Troop 1600 in

Burbank, Illinois, in February of 1984, (2) defendant BSA admitted that a document attached

by plaintiff in his third request to admit was that charter renewal overflow page, and (3)

defendant BSA admitted that the charter renewal overflow page identified an adult member

as “Tom Hacker.”

¶ 48 Plaintiff averred in his affidavit that once the abuse ended, he did everything he could

to move past it. He successfully blocked the abuse out of his mind. He did not let it impact

his activities or education. He eventually obtained a master’s degree and embarked on a

successful career

20
All references to plaintiff’s deposition refer to his discovery deposition taken on May 9, 2013,
which is attached as exhibit No. 26 to plaintiff’s response to defendants’ motion for summary
judgment.

19
 No. 1-15-2406

¶ 49 VII. Hacker’s 1988 Arrest and Conviction

¶ 50 Hacker’s IV file shows that he was arrested in Burbank, Illinois, in 1988 and charged

with sexually assaulting young boys between 1983 and 1987 on Boy Scout campouts.

According to a State Police report, attached as an exhibit to defendants’ motion for summary

judgment, plaintiff was interviewed by Illinois State Police officers and investigators with the

Department of Children and Family Services (DCFS) in connection with Hacker’s arrest and

sexual assault charges on February 8, 1988, when plaintiff was 14 years old. According to the

State Police report, plaintiff told them that he had observed Hacker engage in various sex acts

with other boy scouts. As discussed further below, plaintiff did not tell anyone about

Hacker’s abuse of him until 2013, shortly before plaintiff turned 40.

¶ 51 At the time of Hacker’s arrest in Burbank, Illinois, Ken Walters was serving as

CAC’s director of finance and support services. A newspaper article published on February

11, 1988, 21 included statements from Walters about the arrest:

“As a result of [Hacker’s] 1970 conviction, Hacker was placed on the ‘red flag’—

or undesirable—list of the Boy Scouts.

Ken Walters, director of financial services for Chicago area Boy Scouts, said the

organization makes background checks through the confidential list but theorizes that

Hacker was never placed on it.

He said it’s difficult to determine the nature of all 1.5 million adults in Scouting.

‘Here was a popular, well-respected man in the community,’ Walters said. ‘Local

people in control of an organization must make sure the people in control of kids are

people of good quality.’ ”
21
The article (Ex-Scout Leader Charged in Sex Case, Daily Southtown, Feb. 11, 1988)), is
attached as exhibit No. 31 to plaintiff’s response to defendants’ motion for summary judgment.

20
 No. 1-15-2406

¶ 52 The Chicago Tribune also published an article about Hacker’s arrest on February 11,

1988. 22 The article reported statements from both Walker and BSA’s national spokesman at

the time, Barclay Bollas, regarding Hacker’s arrest:

“Ken Walters, director of finance and support services in the Boy Scouts’

Chicago office, said Hacker’s name never was caught by the computer that annually

checks the names of all adult Scout volunteers against the list.

‘Obviously, he’s not on that system,’ Walters said. ‘It would have come up.’

Spokesman Barclay Bollas at the Boy Scouts’ national headquarters in Irving,

Tex., declined Wednesday to say whether Hacker’s name appears on the list, saying,

‘We consider that list confidential.’ ”

At his deposition,23 Walters testified that at the time of Hacker’s 1988 arrest he had called

the registration and subscription department at defendant BSA’s national headquarters to

check to determine if Hacker’s name was in the IV files. Upon requesting this information,

Walters testified that he was told that the list was confidential and that the national

headquarters would not tell him whether or not Hacker’s name was on the list.

¶ 53 Hacker’s IV file contains correspondence from Ernst to defendant BSA’s legal

counsel, dated February 12, 1988, titled “Personal & Confidential,” in which Ernst discusses

Hacker’s arrest:

22
The article (Ex-Boy Scout leader faces abuse charges, Chicago Tribune (Feb. 11, 1988)) is
attached as exhibit No. 32 to plaintiff’s response to defendants’ motion for summary judgment.
23
A transcript of the videotaped deposition of Ken Walters, which was taken in the present matter
on June 10, 2014, is attached as exhibit No. 6 to plaintiff’s response to defendants’ motion for
summary judgment.

21
No. 1-15-2406

“An individual by the name of Thomas E. Hacker was placed on the confidential

file in 1970 because he was arrested for homosexual activity with boys. At that time,

he was a school teacher and lived in Indianapolis, Indiana.

In 1971, we discovered that Mr. Hacker was registered in the Northwest Suburban

Council, No. 751, in Arlington Heights, Illinois. At that time, he was registered on the

district level and also the Scoutmaster of Troop 117 under the name of Thomas

Edwards. When the council discovered that this was really Mr. Thomas Hacker they

immediately sent a letter to us and he was, again, suspended and removed from all

scouting responsibilities.

We had no other information concerning Mr. Hacker until yesterday when I

received a call from the Chicago Tribune indicating that they wanted to talk with me

about an individual who had been arrested in the Chicago council. I did not say

anything to them except indicate that I would give them the number of our public

relations spokesperson. This I did ***

I contacted Barclay Bollas and informed him about this call and told him he

would be receiving a call.

Later in the afternoon, I received a call from Ted Hanley, asking about the

registration of Thomas J. Hacker in Troop S1600 of Chicago. We checked the

registration records and discovered that Mr. Hacker was registered as Tom T. Hacker

as the Chairman of the Committee in Troop S1600.

I have kept in contact with both Mr. Hanley and Mr. Bollas related to this matter.

We checked out microfilm records to determine the method by which Mr. Hacker

became registered with the Boy Scouts of America after being on the confidential file,

22
 No. 1-15-2406

if this was indeed the same person, since we had Tom T. Hacker and our original file

indicated Thomas E. Hacker.

We discovered that in 1984 a Tom Hacker was registered as a multiple as a

Member of the Committee in Troop S1600. At that time we did not check multiple

registrations of adults. We still do not check multiples on councils which mail their

registration applications to the national office.

Mr. Hacker then reregistered as the Chairman of the Committee for the year

ending January 31, 1986. At that time, in early 1985, we did not check reregistered

individuals against the confidential file. However, we do so at the present time.

I believe this is the scenario as I am aware of it. I do understand that Mr. Tom T.

or Tom J. Hacker was indicted on February 11 for 25 counts of oral sex with youth,

most of whom seemed to be scouts. I also received information that he had resigned

in November of 1987 as the Chairman of the Committee but had remained active in

the unit until his arrest.”

¶ 54 Hacker’s IV file also contains a memorandum dated February 17, 1988, written by

Walters and sent to defendant BSA’s legal counsel as one of several documents relating to

Hacker’s arrest, in which Walters summarizes CAC’s actions since their notification on

February 2, 1988, that charges were pending against Hacker. Walters noted that, since the

arrest, the “news media” had been contacting CAC regarding the case, and in particular,

regarding the existence of a preexisting confidential file on Hacker from Indianapolis.

Walters wrote:

“A zone meeting for budget requests of partner United Ways was held on

Saturday, February 13. The question of the [investigation regarding Hacker] came up

23
 No. 1-15-2406

and the chartered partner concept was discussed with United Way, as well as not

believing everything you read in the media, mainly that Mr. Hacker was not a

Scoutmaster.

An investigation was conducted as to how Mr. Hacker was registered with the

Chicago Area Council. It seems that Mr. Hacker was registered with no application as

a multiple person in the 1984/85 charter year by saying that he was registered in

another unit outside the council. That charter was forwarded to the National Office.

In checking unit registration with the Scout troop, which maintains impeccable

unit records, no record of registration could be found for Mr. Hacker. An assumption

would be that he ‘beat the system’ by registering as a ‘multiple’ which was not

checked out. Mr. Hacker also used aliases of T. Hacker, Thomas J. Hacker, Tom

Hacker, and Thomas T. Hacker.”

¶ 55 Hacker’s IV file shows that he was convicted in 1989 of multiple counts of

aggravated sexual assault related to his abuse of Boy Scouts, and sentenced to a 100-year

term of imprisonment. Hacker’s convictions did not stem from his sexual abuse of plaintiff.

Although plaintiff was not involved in Hacker’s trial, he testified in his deposition that he had

some knowledge that Hacker was being tried for sexually abusing boys:

“Q. Back in [’]88 when you were interviewed, did you know that [Hacker] had

been arrested at that time?

A. I had no knowledge of anything of the sort.

Q. Did you come to learn at some point in time that he had been jailed?

A. I believe, yes.

Q. When did you first learn that?

24
No. 1-15-2406

A. I don’t recall the exact year.

Q. Did you know that he had been accused of crimes involving abusing minors?

A. I didn’t read any particulars about it, but I heard through word of mouth that

might have been.

***

Q. *** Did you see any of the newspaper articles or TV coverage of the Hacker

case when it came out?

A. You know, I wouldn’t want to be part of that because the first question I’d

probably get asked is weren’t you part of the Scouts?

Q. My question though is, do you remember that, the publicity about him being

arrested for child molestation?

A. It was a little different. I remember some of it.

Q. Did you—Did you have a feeling of being safer now that he was under arrest?

A. No.

Q. Did you have any feeling about him being under arrest?

A. I’m glad it happened. I’m glad I didn’t have to put him away.

Q. I’m sorry?

A. I’m glad I didn’t have to put him away.

Q. What do you mean by that?

A. I’m glad I didn’t take part in that. I don’t want my name known.

Q. You mean you didn’t want to take part in the trial that convicted him and put

him in jail; is that what you mean by put him away?

25
No. 1-15-2406

A. I just wanted to forget it, and I wasn’t actively trying to avoid it. I just

wouldn’t want to think about it, I wouldn’t want to talk about it, and I wouldn’t want

to read articles or newspapers about it. It’s not something I actively sought out.

Q. I understand, but it was something that was—that was there; it was out there in

the press, correct?

A. I imagine it was. It was in the press quite a bit.

Q. Did you know that he was tried for these crimes?

A. I knew he was tried, yeah.

Q. Were you—Were you contacted by anybody, either the police or the State’s

Attorney’s Office to testify at his trial?

A. No. I wonder why that was. I was in the Scouts. Nobody came forward and

asked me.

Q. Did you go to the trial by any chance?

A. No.

Q. Did you know that he had been sentenced to a hundred years in prison?

A. No.

Q. Did you come to learn that at some point in time?

A. At some point.

Q. Do you remember when you learned that?

A. No. Much later.”

26
 No. 1-15-2406

¶ 56 VIII. Plaintiff’s Discovery of Perversion Files and Injuries

¶ 57 In 2009, six plaintiffs filed suit against defendant BSA in Oregon, alleging that the

boys (then adults) had been molested by their scout leader. Jack Doe 1 v. Corp. of the

Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints, 280 P.3d 377, 380 (Or.

2012). That lawsuit culminated in a 2010 trial for one of the plaintiffs. Jack Doe 1, 280 P.3d

at 380. At the conclusion of phase one of that trial, the jury awarded compensatory damages

in the amount of $1.4 million and punitive damages in the amount of $18.5 million against

defendant BSA. Jack Doe 1, 280 P.3d at 380. During the trial, the trial court admitted 1247

Perversion Files from 1965 to 1985 into evidence over defendant BSA’s objections. Jack

Doe 1, 280 P.3d at 380. Defendant BSA had previously produced those files in discovery and

the files had been subject to a protective order. Jack Doe 1, 280 P.3d at 380. At the close of

trial, the plaintiffs moved to vacate the protective order, so that the Perversion Files could be

released to the public. Jack Doe 1, 280 P.3d at 380. Six media entities—the Associated Press,

The Oregonian, Oregon Public Broadcasting, The New York Times, KGW, and Courthouse

News Service—all moved to intervene and sought release of the IV files. Jack Doe 1, 280

P.3d at 381 & n.3.

¶ 58 The trial court in Jack Doe 1 vacated its protective order and allowed the release of

the files to the public in redacted form. Jack Doe 1, 280 P.3d at 381. Defendant BSA filed a

writ of mandamus in the Oregon Supreme Court requesting that the court reverse the trial

court order that permitted release of the files. Jack Doe 1, 280 P.3d at 382. The Oregon

Supreme Court dismissed the writ, thereby allowing for release of 1247 files to the public in

27
 No. 1-15-2406

redacted form. Jack Doe 1, 280 P.3d at 381. In October of 2012, the 1247 files became

publicly available. 24 One of the many files was that of Thomas Hacker.

¶ 59 Plaintiff averred in his affidavit that neither plaintiff nor his parents learned of

Hacker’s history of molesting scouts until 2013. In 2013, plaintiff read a Chicago Tribune

article regarding a lawsuit filed against Hacker, defendant BSA and defendant CAC. In his

affidavit, plaintiff averred: “I then, for the first time, realized that Hacker was a known

pedophile and that Boy Scouts of America knew he was a pedophile long before he abused

me. It was at this time I sought legal counsel for the first time.” Prior to 2013, plaintiff did

not believe that defendants BSA or CAC had done anything wrong. He averred in his

affidavit that he had no reason to suspect that either entity would have permitted Hacker to

volunteer with his troop despite his long history of sexually abusing children.

¶ 60 Plaintiff further averred in his affidavit that he never told anyone about Hacker’s

abuse of him until 2013. He did not tell his parents, family, spouse, or friends about the abuse

initially because he thought he would be in trouble if he did. He also chose to remain silent

because he did not want any of those close to him to think differently of him or to know what

was happening. In his affidavit, he stated that he had expressly denied that the abuse had

occurred when asked by his parents. He did not tell his wife about the molestation until 2013.

¶ 61 Dr. John R. Conte, Ph.D., evaluated plaintiff on two separate occasions in 2015. As
25
his affidavit and supporting documents indicate, Dr. Conte is currently the Joshua

Children’s Foundation Distinguished Scholar on Child Sexual Abuse at the University of

Washington School of Social Work, and he is presently serving as the editor of two peer-

24
The files are available online at http://crewjanci.com/resources/boy-scout-perversion-files/ (last
visited July 20, 2016).
25
The affidavit of Jon R. Conte, dated October 16, 2014, is attached as exhibit No. 40 to
plaintiff’s response to defendants’ motion for summary judgment.

28
 No. 1-15-2406

reviewed journals that publish a wide range of research on various aspects of interpersonal

violence, including trauma. He has been evaluating, diagnosing and treating abuse survivors

for more than 30 years.

¶ 62 In his affidavit, Dr. Conte avers that plaintiff’s life changed after learning of Hacker’s

IV file and reading it:

“After learning of Hacker’s ineligible volunteer file, [plaintiff’s] life changed. He

was consumed with anger over the fact that he had been hurt by the defendants and

they knew it, yet they did nothing over the years to approach him or help him. He had

previously been successful in putting thoughts of abuse out of his mind, but he

became consumed with both the initial sexual abuse and the betrayal and abuse

committed by the Boy Scouts. He understood that the defendants could have

prevented the abuse from happening. Thoughts of the abuse continually came up in

his mind, and he began suffering recurring flashbacks of the abuse. At times these

images popped into his head every two to three days and they caused him to become

very angry.

[Plaintiff] is not self-aware, he has had a long history of suppressing negative

thoughts, and he has had little interest in understanding his life in psychological

terms. Before reading Mr. Hacker’s ineligible volunteer file, it never occurred to

[plaintiff] that he had suffered psychological injuries as a result of his abuse, let alone

any injuries as a result of any wrongdoing by the defendants. [Plaintiff] has a long

adult history of emotional and behavioral problems. He did not understand these

symptoms as resulting from childhood sexual abuse but rather thought of them as the

‘way he was.’

29
No. 1-15-2406

It was not until he learned about the contents of Mr. Hacker’s ineligible volunteer

file, and he became fixated on the abuse and the fault of the defendants in allowing

the abuse to occur, that [plaintiff] realized that the manifestations of his psychological

injuries, such as his anger and depression, were not natural and were in fact caused by

the abuse he suffered as a child. [Plaintiff] has some of the features of post traumatic

stress disorder (‘PTSD’) as a result of the sexual abuse by Mr. Hacker, but [plaintiff]

was not aware that those features were related to the abuse by Mr. Hacker until after

he learned of Mr. Hacker’s ineligible volunteer file.

Prior to learning of Mr. Hacker’s ineligible volunteer file, [plaintiff] had never

told anyone about the abuse by Mr. Hacker, even though he had gone to marital

counseling with his wife for issues in their marriage. Issues that are now clearly

related to the sexual abuse he has not dealt with until learning about the betrayal of

the Boy Scouts. It was not until after learning of Mr. Hacker’s ineligible volunteer file

that [plaintiff] disclosed the abuse to his wife.

Mr. Hacker’s position as a scout leader played a considerable role in the process

that Mr. Hacker used to groom and sexually abuse [plaintiff] because he had been

taught that scout leaders were safe and trustworthy and his parents were insistent that

he participate in scouting in order to learn good values. In addition to the

psychological injuries that [plaintiff] suffered as a result of the sexual abuse by Mr.

Hacker, it is my opinion that learning that the defendants could have protected him,

and then covered-up their fault in allowing the abuse to happen, caused him separate

psychological injuries, including: anxiety; depression; obsessive-compulsive

symptoms (e.g. difficulty concentrating, his mind going blank); hostility and anger,

30
 No. 1-15-2406

some degree of paranoid ideation (e.g. feeling that others cannot be trusted) and

somatization and interpersonal sensitivity and problems and relatedness; defensive

avoidance; impaired self reference, reduced self awareness; dissociation; sexual

concerns; negative cognitions of self criticism, self blame, helplessness, hopelessness,

and preoccupation with danger; and affect control, including affect dysregulation

(both affect skills deficits and affect instability); and tension reducing activities.

[Plaintiff] spent his adult life managing anger and rage, self-blame,

embarrassment, and shame without understanding the origins of these in the sexual

abuse he experienced by Mr. Hacker. It is my opinion that learning of the contents of

Mr. Hacker’s ineligible volunteer file caused [plaintiff] to begin to understand that he

suffered psychological injuries as a result of the wrongful acts of the defendants, but

he still has little understanding of how the abuse has changed his life and how it

impacted his emotional life, romantic relationships, social relationships, and behavior.

The quality of his life has been significantly made more negative by the abuse and the

years that he did not understand the impact that the abuse had on his life but

nonetheless suffered with anger, depression, feelings of isolation, intimacy difficulties

and other emotional problems.”

¶ 63 ANALYSIS

¶ 64 On this appeal, the trial court certified the following question for interlocutory review

to this court under Illinois Supreme Court Rule 308 (eff. Jan. 1, 2015):

“Does the fraudulent-concealment statute of limitations permit a plaintiff to

maintain an otherwise time-barred action for child sexual abuse when he testifies that

he knew, before the action was time-barred, that he had sustained a physical injury

31
 No. 1-15-2406

from the abuser’s conduct and that the abuser had been arrested and tried for similar

crimes?”

¶ 65 I. Illinois Supreme Court Rule 308

¶ 66 Illinois Supreme Court Rule 308 provides a remedy of permissive appeal from

interlocutory orders where the trial court has deemed that they involve a question of law as to

which there is substantial ground for difference of opinion and where an immediate appeal

from the order may materially advance the ultimate termination of the litigation. Ill. S. Ct. R.

308 (eff. Jan. 1, 2015). Rule 308 is reserved for questions of law. See Walker v. Carnival

Cruise Lines, Inc., 383 Ill. App. 3d 129, 133 (2008). “[T]he rule was not intended to allow

for an interlocutory appeal of merely an application of the law to the facts of a specific case.”

Walker, 383 Ill. App. 3d at 133.

¶ 67 We apply a de novo standard of review to legal questions presented in an

interlocutory appeal brought pursuant to Rule 308. Simmons v. Homatas, 236 Ill. 2d 459, 466

(2010). De novo consideration means we perform the same analysis that a trial judge would

perform. Khan v. BDO Seidman, LLP, 408 Ill. App. 3d 564, 578 (2011). Generally, we are

limited to answering the certified question and will not go beyond the question to address the

appropriateness of the underlying order. Cincinnati Insurance Co. v. Chapman, 2012 IL App

(1st) 111792, ¶ 21.

¶ 68 “ ‘Whether the injured person has become possessed of sufficient information

concerning his or her injury and its cause to put a reasonable person on inquiry to determine

whether actionable conduct is involved is usually a question of fact.’ ” Wisniewski v. Diocese

of Belleville, 406 Ill. App. 3d 1119, 1165 (2011) (quoting Pruitt v. Shultz, 235 Ill. App. 3d

934, 936 (1992)). The Wisniewski court found that the effect of a plaintiff’s knowledge about

32
 No. 1-15-2406

his abuse on the application of the fraudulent concealment statute was a question of fact.

Wisniewski, 406 Ill. App. 3d at 1165. Defendants attempt to distinguish Wisniewski, but as

explained below, Wisniewski is controlling and the facts of Wisniewski are related starting in

infra ¶ 86 of this opinion.

¶ 69 We are unwilling to hold, as a matter of law, that a plaintiff’s knowledge that he

sustained a physical injury and that his abuser has been arrested and tried for child sexual

abuse is sufficient to put him on notice of every other potential claim against every other

potentially liable party, especially where the plaintiff alleges that he did not discover those

claims because they were fraudulently concealed.

¶ 70 Plaintiff argues that we should dismiss the present appeal because the certified

question is a fact-based question. However, judicial economy counsels against dismissal. A

central purpose of an interlocutory appeal pursuant to Rule 308 is to “materially advance the

ultimate termination of the litigation.” Ill. S. Ct. R. 308(a) (eff. Jan. 1, 2015). It is clear that

the application of the fraudulent concealment statute to the facts of this case is an issue over

which the parties and the trial court are not in full agreement. As such, clarifying this issue

and addressing the trial court’s question will advance the ultimate termination of the

litigation. In contrast, dismissing the appeal at this stage would yield little clarification and

allow for an unnecessary delay in litigation. Accordingly, we proceed to address the court’s

question.

¶ 71 II. Statute of Limitations

¶ 72 A statute of limitations dictates the time within which a claimant must commence a

lawsuit after his or her cause of action accrues. DeLuna v. Burciaga, 223 Ill. 2d 49, 61

(2006). In personal injury actions, a claimant’s cause of action generally accrues at the time

33
 No. 1-15-2406

of the injury. Golla v. General Motors Corp., 167 Ill. 2d 353, 360 (1995). However, under

the judicially created discovery rule, a claimant’s cause of action does not accrue until the

claimant “knows or reasonably should know that he has been injured and that his injury was

wrongfully caused.” Golla, 167 Ill. 2d at 360-61.

¶ 73 By contrast, a statute of repose sets an outer time limit for filing a cause of action,

regardless of when the action accrued. DeLuna, 223 Ill. 2d at 61. Thus, the discovery rule

cannot save an action that has expired under a statute of repose. Wisniewski, 406 Ill. App. 3d

at 1151 (citing Goodman v. Harbor Market, Ltd., 278 Ill. App. 3d 684, 690-91 (1995)).

Nevertheless, the fraudulent concealment statute may operate to revive a cause of action

whether it is barred by a statute of limitations or a statute of repose. DeLuna, 223 Ill. 2d at

67-74; see also Wisniewski, 406 Ill. App. 3d at 1151.

¶ 74 The parties disagree on which statute of limitations applies to plaintiff’s claim,

although neither party has argued that a statute of repose applies. In their motion for

summary judgment, the Boy Scout defendants argue that the applicable statute of limitations

is the version of the two-year personal injury statute of limitations that was in effect at the

time of plaintiff’s abuse from 1983 to 1986 (Ill. Rev. Stat. 1983, ch. 110, ¶ 13-202). 26

Because plaintiff was a minor at the time of the abuse, the Boy Scout defendants argue that

he had until two years after he turned 18 to file an action, pursuant to section 13-211 of the

Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, ¶ 13-211). 27 Accordingly, the Boy

Scout defendants maintain that plaintiff’s action has been time-barred since August 16,

1993—the date of his twentieth birthday. Plaintiff, on the other hand, argues that the special

26
The two-year statute of limitations for personal injury actions is now codified as 735 ILCS 5/13-
202 (West 2014).
27
The statute of limitations exception for minors and persons under disability is now codified as
735 ILCS 5/13-211 (West 2014).

34
 No. 1-15-2406

statute of limitations for childhood sexual abuse claims—originally adopted as Ill. Rev. Stat.

1991, ch. 110, ¶ 13-202.2 28—applies, although he does not specify which version applies or

how it applies, except to argue that the 1991 version of the statute does not apply.

¶ 75 On January 1, 1991, the Illinois General Assembly adopted section 13-202.2 of the

Code of Civil Procedure (Pub. Act 86-1346 (eff. Jan. 1, 1991)). When enacted in 1991,

section 13-202.2 provided in pertinent part:

“An action for damages for personal injury based on childhood sexual abuse must be

commenced within 2 years of the date the person abused discovers or through the use

of reasonable diligence should discover that the act of childhood sexual abuse

occurred and that the injury was caused by the childhood sexual abuse, but in no

event may an action for personal injury based on childhood sexual abuse be

commenced more than 12 years after the date on which the abused attains the age of

18 years.” Ill. Rev. Stat. 1991, ch. 110, ¶ 13-202.2(b).

Thus, the 1991 version of section 13-202.2 contained a two-year statute of limitations and a

12-year statute of repose. The 12-year statute of repose had the effect of preventing anyone

over the age of 30 from bringing an action for personal injury based on childhood sexual

abuse. Doe A. v. Diocese of Dallas, 234 Ill. 2d 393, 408 (2009).

¶ 76 Effective January 1, 1994, however, the legislature removed the 12-year statute of

repose for childhood sexual abuse claims. After the 1994 amendment (Pub. Act 88-22 (eff.

Jan. 1, 1994)), section 13-202.2(b) provided:

“An action for damages for personal injury based on childhood sexual abuse must be

commenced within 2 years of the date the person abused discovers or through the use

28
The special statute of limitations for personal injury actions based on childhood sexual abuse is
currently codified as 735 ILCS 5/13-202.2 (West 2014).

35
 No. 1-15-2406

of reasonable diligence should discover that the act of childhood sexual abuse

occurred and that the injury was caused by the childhood sexual abuse.” 735 ILCS

5/13-202.2(b) (West 1994).

As plaintiff correctly observes, no subsequent version of the statute has reinstated a statute of

repose. Rather, each subsequent version, like the 1994 version, has imposed a time limit

based on the claimant’s discovery of the action.

¶ 77 Plaintiff was born on August 16, 1973. He was abused between 1983 and 1986, and

he turned 18 years old on August 16, 1991, roughly eight months after the legislature

adopted the childhood sexual abuse statute on January 1, 1991. The Boy Scout defendants

agree that plaintiff’s claim could not have accrued until he turned 18. Because his claim was

not already time-barred when the childhood sexual abuse statute came into effect, and

because his claim falls within the purview of the childhood sexual abuse statute, since the

claim is “based on” sexual abuse, the statute applies to his claim. Furthermore, the 12-year

statute of repose included in the 1991 version of the childhood sexual abuse statute would

apply to plaintiff’s claim only if he had turned 30 years old before 1994. Diocese of Dallas,

234 Ill. 2d at 410 (“Because the repose period was eliminated before it expired, there was

never a time when it operated to insulate defendants from liability.”). Because plaintiff

turned 30 years old in 2003, the 12-year statute of repose contained in the 1991 version of the

statute does not apply to his claim.

¶ 78 Plaintiff alleges that he did not discover his cause of action against the Boy Scout

defendants until 2013. Although he correctly observes that no statute of repose applies to his

claim, plaintiff did not argue on this interlocutory appeal or on summary judgment that his

claim is timely under any version of the childhood sexual abuse statute. Instead, he relied

36
 No. 1-15-2406

solely on the fraudulent concealment statute. Because plaintiff has not argued that his claim

is timely under the childhood sexual abuse statute, and thus the Boy Scout defendants did not

have occasion to respond to any such arguments, we decline to consider whether or not

plaintiff’s claim is actually timely under the childhood sexual abuse statute. 29

¶ 79 III. Fraudulent Concealment

¶ 80 The fraudulent concealment statute (735 ILCS 5/13-215 (West 2012)) provides:

“If a person liable to an action fraudulently conceals the cause of such action from the

knowledge of the person entitled thereto, the action may be commenced at any time

within 5 years after the person entitled to bring the same discovers that he or she has

such cause of action, and not afterwards.”

Fraudulent concealment is not a cause of action in and of itself. Cangemi v. Advocate South

Suburban Hospital, 364 Ill. App. 3d 446, 459 (2006). Rather, it is an exception to the

limitations period imposed on other, underlying causes of action. Cangemi, 364 Ill. App. 3d

at 459.

¶ 81 Generally, fraudulent concealment must consist of “ ‘affirmative acts or

representations which are calculated to lull or induce a claimant into delaying filing of his

claim or to prevent a claimant from discovering his claim.’ ” Wisniewski, 406 Ill. App. 3d at

1154 (quoting Smith v. Cook County Hospital, 164 Ill. App. 3d 857, 862 (1987)). “ ‘A

plaintiff must plead and prove that the defendant made misrepresentations or performed acts

29
All versions of the “Childhood Sexual Abuse” statute refer to an action for damages for
personal injury “based on” childhood sexual abuse (735 ILCS 5/13-202.2(b) (West 2014) (originally
codified at Ill. Rev. Stat. 1991, ch. 110, ¶ 13-202(b) (amended in 1994, 2003, 2011 (twice), 2013 and
2014))). All versions impose a limitations period that begins running upon a plaintiff’s discovery of
his or her action. Plaintiff’s action appears to be an action for damages for personal injury “based on”
childhood sexual abuse. Plaintiff claims that he did not discover his action until 2013 and that he filed
suit shortly thereafter.

37
 No. 1-15-2406

which were known to be false, with the intent to deceive the plaintiff, and upon which the

plaintiff detrimentally relied.’ ” Wisniewski, 406 Ill. App. 3d at 1154 (quoting Orlak v.

Loyola University Health System, 228 Ill. 2d 1, 18 (2007)). Thus, as a general rule, mere

silence on the part of the defendant and failure by the plaintiff to discover a cause of action is

not enough to establish fraudulent concealment. Wisniewski, 406 Ill. App. 3d at 1154.

¶ 82 However, there is an exception to the rule that silence alone does not amount to

fraudulent concealment if a fiduciary, trust or other confidential relationship exists between

the plaintiff and the defendant (alternatively called a “special relationship”). Wisniewski, 406

Ill. App. 3d at 1154 (citing Chicago Park District v. Kenroy, Inc., 78 Ill. 2d 555, 561 (1980)).

“[W]hen such a relationship exists, the person occupying the position of fiduciary or of

confidence is under a duty to reveal the facts to the plaintiff, and his silence is as fraudulent

as an actual affirmative false representation or act.” Wisniewski, 406 Ill. App. 3d at 1154

(citing Chicago Park District, 78 Ill. 2d at 562). “Silence by a person in a position of trust

concerning the facts giving rise to a cause of action amounts to fraudulent concealment.”

Wisniewski, 406 Ill. App. 3d at 1155 (citing Chicago Park District, 78 Ill. 2d at 562).

¶ 83 As plaintiff observes, the Fifth District’s recent decision in Wisniewski bears many

similarities to the present case. In Wisniewski, the plaintiff, James Wisniewski, had been

abused by a priest of the Diocese of Belleville (the Diocese), Raymond Kownacki, between

1973 and 1978. Wisniewski, 406 Ill. App. 3d at 1122. After the abuse stopped, Wisniewski

was able to block it out of his mind and lead a healthy and successful life until 2002.

Wisniewski, 406 Ill. App. 3d at 1143-44. However, when national news broke in early 2002

about a large-scale scandal involving priests in Boston, Massachusetts, who had molested

children, Wisniewski began to experience severe psychological distress relating to

38
 No. 1-15-2406

Kownacki’s molestation of him as a child. Wisniewski, 406 Ill. App. 3d at 1144-48. He

wondered if Kownacki had molested other children, and what the Diocese had known about

Kownacki before he had become Wisniewski’s priest. Wisniewski, 406 Ill. App. 3d at 1144-

46. Wisniewski filed a lawsuit in 2002 to find out what the Diocese had known about

Kownacki’s sexual misconduct. Wisniewski, 406 Ill. App. 3d at 1146.

¶ 84 Wisniewski asserted that his claim against the Diocese was timely because the

Diocese had fraudulently concealed his cause of action. Wisniewski, 406 Ill. App. 3d at 1148.

At trial, the evidence showed that the Diocese had known that Kownacki had a history of

exploiting his authority as a priest to sexually abuse young people before his abuse of

Wisniewski; that the Diocese knew that Kownacki sexually abused Wisniewski; and that the

Diocese never disclosed any of this knowledge to Wisniewski at any time. Wisniewski, 406

Ill. App. 3d at 1123-27, 1161-62. The jury found that the fraudulent concealment statute

operated to revive Wisniewski’s claim against the Diocese because (1) a special relationship

existed between the Diocese and Wisniewski; (2) the Diocese’s failure to disclose their

knowledge or fault to Wisniewski constituted fraudulent concealment, in light of this special

relationship; and (3) the Diocese’s fraudulent concealment had prevented Wisniewski from

discovering his cause of action against the Diocese until 2002. Wisniewski, 406 Ill. App. 3d

at 1160, 1162. The Diocese appealed, and our Fifth District of the Appellate Court upheld the

jury’s verdict and the trial court’s judgment on that verdict. Wisniewski, 406 Ill. App. 3d at

1160, 1162. The Fifth District found that the above issues relating to the application of the

fraudulent concealment statute had properly been submitted to the jury as questions of fact.

Wisniewski, 406 Ill. App. 3d at 1160-62, 1168.

39
 No. 1-15-2406

¶ 85 Based on Wisniewski, where a plaintiff alleges the existence of a special relationship,

resolution of the issue of fraudulent concealment involves a three-part inquiry: (1) was there

a special relationship between the parties; (2) did the defendant’s acts or omissions amount to

fraudulent concealment; and (3) did this fraudulent concealment prevent the plaintiff from

discovering his claim. See Wisniewski, 406 Ill. App. 3d at 1160-62. In Wisniewski, each of

these issues was a question of fact for the jury. Wisniewski, 406 Ill. App. 3d at 1160-62,

1168. In order to distinguish Wisniewski, and thus give a “no” answer to the certified

question, we would have to find that the facts of the present case are so different that the

issue of fraudulent concealment should be decided in the Boy Scouts’ favor as a matter of

law. See Wisniewski, 406 Ill. App. 3d at 1165. In other words, we would have to find that

only one conclusion could be drawn on the undisputed facts. Pruitt, 235 Ill. App. 3d at 936-

37.

¶ 86 A. Special Relationship

¶ 87 A special relationship is a relationship that gives rise to a duty to disclose material

facts concerning the existence of a cause of action. See Wisniewski, 406 Ill. App. 3d at 1157-

61. It is well recognized that a formal fiduciary or confidential relationship, such as the

attorney-client or doctor-patient relationship, gives rise to such a duty. DeLuna v. Burciaga,

223 Ill. 2d 49, 69, 73 (2006). However, such a relationship may also arise less formally in

situations where a plaintiff places trust and confidence in a defendant, and the defendant

thereby assumes a “position of influence or superiority” over the plaintiff. Connick v. Suzuki

Motor Co., 174 Ill. 2d 482, 500 (1996); see also Wisniewski, 406 Ill. App. 3d at 1160. Where,

as here, a special relationship is not established between the parties as a matter of law, the

40
 No. 1-15-2406

issue must be decided by the factfinder, as long as the evidence supports reasonable

disagreement on the issue. See Wisniewski, 406 Ill. App. 3d at 1160.

¶ 88 In Wisniewski, the appellate court upheld the jury’s finding of a special relationship

between the Diocese and Wisniewski, one of its parishioners. Wisniewski, 406 Ill. App. 3d

1160. The court summarized the evidence of a special relationship between Wisniewski and

the Diocese as follows:

“The jury heard evidence that the Diocese, its officers, its priests, and its parish in

Salem, Illinois, played a central role in Wisniewski’s life from the time his parents

first moved to Salem when he was a young boy and throughout his childhood. The

family was very active in church life, and Wisniewski and his siblings were taught to

obey and believe everything the Diocese’s bishops, monsignors, and priests said to

them. Wisniewski was an active parishioner and an altar boy and was taught to trust

and respect the Diocese and put his faith and trust in its agents and employees. He

attended the Diocese’s Catholic grade school for a number of years, worked around

the parish, and expressed interest in becoming a Catholic priest.

The agents and employees of the Diocese were held in high esteem in

Wisniewski’s family and were placed on a pedestal, and the Diocese itself fostered,

promoted and encouraged this trusting relationship by urging its practitioners to trust

their priests’ ‘knowledge, piety, prudence, experience and general character.’ In fact,

when the Diocese appointed Kownacki to the parish in Salem, the bishop, as the

Diocese’s CEO, ‘command[ed] all, whom it may concern, to recognize [Kownacki]

as such Pastor and grant [him] all necessary assistance.’ The Diocese successfully

garnered this trust with Wisniewski’s parents and with Wisniewski, and it is this very

41
 No. 1-15-2406

trust that Kownacki exploited in order to sexually abuse Wisniewski for years.”

Wisniewski, 406 Ill. App. 3d at 1157.

Based on these facts, the appellate court found that the evidence “overwhelmingly

established that Wisniewski placed his trust and confidence in the Diocese and that the

Diocese not only accepted that trust and confidence but encouraged and promoted it.”

Wisniewski, 406 Ill. App. 3d at 1157. As such, the court upheld the jury’s finding that a

special relationship existed between Wisniewski and the Diocese. Wisniewski, 406 Ill. App.

3d at 1160.

¶ 89 In their motion for summary judgment, the Boy Scout defendants argued that, even if

plaintiff thought he was reposing trust and confidence in defendants, he cannot establish that

defendants accepted this trust and confidence. The Boy Scout defendants argued that

plaintiff’s deposition did not establish the existence of a special relationship between the

parties. The Boy Scout defendants emphasized the depth of the relationship between the

Diocese and Wisniewski’s family and claimed that plaintiff’s deposition does not provide

evidence of such a trusting relationship.

¶ 90 In response, plaintiff argued that his relationship with defendants was “strikingly

similar” to the relationship in Wisniewski. Plaintiff claimed that the Boy Scouts played an

important role—as was their objective—in his early life; that the Boy Scouts taught plaintiff

to obey and trust his adult leaders, as partially evidenced by their requirement that plaintiff

obey scout law; that plaintiff and his parents trusted Hacker and all other leaders because

defendants represented in the handbook, among other places, that such leaders were safe and

could be trusted; and that defendants accepted plaintiff’s trust, as evidenced by their

promotion and requirement of an “intimate relationship” between scouts and scoutmasters

42
 No. 1-15-2406

and by their selective standards for choosing adult leaders. Plaintiff highlights the

contradiction between the Boy Scout defendants’ current efforts to de-emphasize the scout-

scoutmaster bond with defendant BSA’s arguments emphasizing the importance of the same

relationship in Boy Scouts of America v. Dale, 530 U.S. 640 (2000). 30

¶ 91 A reasonable jury could conclude that plaintiff reposed his trust in the Boy Scout

defendants and that the Boy Scout defendants accepted plaintiff’s trust. In his affidavit,

plaintiff averred that, as a boy scout, he was loyal to his scoutmaster and the scouting way

when he joined. He took the scout oath seriously and obeyed scout law to the best of his

ability. He further averred that his parents trusted the Boy Scouts and Hacker; they would not

have let plaintiff participate in activities that they did not believe were safe. A reasonable

jury could find that the Boy Scout defendants accepted plaintiff’s trust by (1) requiring that

he take a scout oath, obey scout law, and be loyal to his adult leaders; (2) promulgating

extensive policies, procedures, rules, and regulations, which focus in large part on

maintaining safety for boy scouts; and (3) promoting an intimate relationship between scouts

and the adult leaders whom they employ. A reasonable jury could find that by requiring

loyalty from plaintiff, the Boy Scout defendants necessarily accepted plaintiff’s trust.

¶ 92 Furthermore, the relationship between plaintiff and the Boy Scout defendants

resembles the relationship between Wisniewski and the Diocese in material respects.

Defendant BSA, like a church, provides moral instruction to children. According to its

website, defendant BSA offers a program for young people with the aim of building

30
In Dale, the Supreme Court of the United States held that applying New Jersey’s public
accommodations law to require BSA to admit an open homosexual adult leader violated BSA’s first
amendment right of expressive association. Dale, 530 U.S. at 656. BSA’s brief in Dale is attached as
exhibit No. 35 to plaintiff’s response to defendants’ motion for summary judgment.

43
 No. 1-15-2406

character, training them in responsible citizenship, and developing personal fitness. 31 In

plaintiff’s affidavit, he averred that he joined the Boy Scouts, in part, because his parents felt

that it would instill positive values in him and provide for a safe, social activity. Any

organization that accepts youth members, especially for purposes of moral guidance, is in a

unique position of superiority and influence over those youths. Plaintiff’s parents allowed

plaintiff to spend time with defendant BSA—and thus, time alone with Hacker—because

they wanted defendant BSA to have a positive moral influence on their son. Hacker exploited

this position of moral influence over plaintiff in the same way that Kownacki abused his

power over Wisniewski. Based on these similarities, and the evidence discussed above, a

factual issue exists as to whether or not plaintiff and the Boy Scout defendants were in a

special relationship. As we explain more fully below, depending on the answer to this factual

question, the fraudulent concealment statute may permit plaintiff to maintain the action in the

instant case.

¶ 93 B. Defendants’ Alleged Concealment

¶ 94 As we discussed above, a plaintiff alleging fraudulent concealment must generally

show that a defendant engaged in affirmative acts amounting to fraudulent concealment.

Wisniewski, 406 Ill. App. 3d at 1154. However, where there is a special relationship between

the parties, a defendant’s failure to disclose facts giving rise to a cause of action against it

may constitute fraudulent concealment. Wisniewski, 406 Ill. App. 3d at 1154. For instance, in

Wisniewski, the appellate court upheld the jury’s finding that the Diocese’s silence, after

learning that Kownacki abused Wisniewski, constituted fraudulent concealment. Wisniewski,

406 Ill. App. 3d at 1161-62.

31
http://www.scouting.org/About.aspx (last visited July 20, 2016).

44
 No. 1-15-2406

¶ 95 In the case at bar, the Boy Scout defendants do not dispute that they were silent

regarding plaintiff’s potential cause of action against them. Rather, they contend that no

special relationship existed, and that their actions did not amount to fraudulent concealment

in the absence of such a relationship. Plaintiff, on the other hand, argues that there was a

special relationship. Alternatively, plaintiff argues that, even if the parties had not been in a

special relationship, the Boy Scout defendants’ affirmative acts—such as Ken Walters’

statements to the press that defendant BSA performs background checks on adult leaders and

that Hacker was not in the IV file system—amounted to fraudulent concealment.

¶ 96 If the Boy Scout defendants were in a special relationship with plaintiff, their silence

could amount to fraudulent concealment. Wisniewski, 406 Ill. App. 3d at 1154. Because the

Boy Scout defendants were admittedly silent regarding plaintiff’s cause of action, an issue of

fact remains as to whether or not they fraudulently concealed plaintiff’s cause of action. If

the finder of fact concludes that plaintiff and defendants were not in a special relationship, it

will be asked to determine whether or not defendants’ affirmative acts—such as Ken

Walters’ statements to the press—constituted fraudulent concealment.

¶ 97 However, there is one notable difference between the facts of Wisniewski and the

facts of the present case regarding defendants’ alleged concealment. In Wisniewski, there was

evidence that the Diocese learned that Kownacki had molested Wisniewski. Wisniewski, 406

Ill. App. 3d at 1162. In upholding the jury’s findings, the appellate court concluded that “the

evidence was more than sufficient for a jury to find that the Diocese’s continued silence after

learning that Wisniewski was abused was the equivalent of an affirmative act of fraudulent

concealment of Wisniewski’s claim against it.” (Emphasis added.) Wisniewski, 406 Ill. App.

45
 No. 1-15-2406

3d at 1162. In contrast, in the case at bar, plaintiff does not argue that the Boy Scout

defendants had positive knowledge that Hacker molested plaintiff in particular.

¶ 98 Nevertheless, this difference does not alter our conclusion on the issue. Hacker’s IV

file unequivocally shows that the Boy Scout defendants had knowledge, by 1988, that Hacker

was a serial pedophile who had been registered as an adult leader with Troop 1600 from at

least 1984 to 1987, when he resigned. For instance, in the February 12, 1988, correspondence

from Paul Ernst to defendant BSA’s legal counsel, quoted in the background section above,

Ernst communicated that defendant BSA had learned that Hacker had sexually abused scouts

as an adult leader in the early 1970s; that Hacker registered with Troop 1600 in 1984 and

1985; and that Hacker had been indicted in 1988 for “25 counts of oral sex with youth, most

of whom seemed to be scouts.” Based on this evidence alone, a reasonable jury could find

that the Boy Scout defendants had a duty to disclose their potential liability to all scouts who

had been in Troop 1600 since 1984—which would include plaintiff—regardless of their

specific knowledge about which scouts Hacker molested. Furthermore, plaintiff’s allegation

of fraudulent concealment is based in part on the Boy Scout defendants’ wholesale

concealment, until 2012, of their knowledge that pedophiles had been infiltrating Boy Scout

troops and sexually abusing scouts consistently since the early twentieth century.

Accordingly, we do not find Wisniewski distinguishable on the basis that the Boy Scout

defendants, unlike the Diocese, may not have had specific knowledge of plaintiff’s abuse.

¶ 99 C. Plaintiff’s Discovery of His Action

¶ 100 The final step in our analysis is to consider whether or not the Boy Scout defendants’

alleged concealment prevented plaintiff from discovering his claim until late 2012. See

Wisniewski, 406 Ill. App. 3d at 1162. With respect to actions for fraudulent concealment, a

46
 No. 1-15-2406

plaintiff must show either (1) that he or she could not have discovered the fraud sooner

through the exercise of ordinary diligence or (2) that the trust or confidence that the plaintiff

reposed in the defendant prevented the plaintiff from discovering the fraud any sooner.

Hagney v. Lopeman, 147 Ill. 2d 458, 464-66 (1992); In re Estate of Myers, 120 Ill. App. 3d

726, 732 (1983); In re Estate of Dykema, 89 Ill. App. 3d 741, 744 (1980).

¶ 101 In Wisniewski, the appellate court concluded that the evidence was sufficient for the

jury to find that Wisniewski had no reason to know or suspect any wrongdoing on the

Diocese’s part prior to 2002. Wisniewski, 406 Ill. App. 3d at 1163-64. Emphasizing the

existence of a special relationship between the Diocese and Wisniewski, the court held that

“Wisniewski had no reason to suspect that the Diocese betrayed his trust and confidence.”

Wisniewski, 406 Ill. App. 3d at 1165. In response to the Diocese’s arguments that Wisniewski

had sufficient information to place him on notice of his potential cause of action against it,

the court found that Wisniewski had no duty, under the circumstances, to affirmatively

investigate the Diocese’s misconduct: “The evidence was sufficient for the jury to conclude

that Wisniewski was under no obligation to search for wrongdoing by the Diocese when

Kownacki was engaged in activities that may be reasonably viewed as conduct that the

Diocese would never tolerate. The jury was entitled to find that Wisniewski was not required

to presume such unfaithfulness on the part of the Diocese.” (Emphases added.) Wisniewski,

406 Ill. App. 3d at 1169. Accordingly, the court upheld the jury’s finding that the Diocese’s

concealment prevented Wisniewski from discovering his action until 2002. Wisniewski, 406

Ill. App. 3d at 1163-64.

¶ 102 Similarly, in the case at bar, a reasonable jury could conclude that plaintiff had no

reason to know or suspect any wrongdoing on the part of the Boy Scout defendants until late

47
 No. 1-15-2406

2012, when the IV files were first publicized. The record shows the following facts:

defendant BSA created an IV file on Hacker in 1970, when he was first banned for sexually

abusing scouts. Nevertheless, Hacker was able to reregister and sexually abuse scouts in

multiple positions at defendant BSA in the 1970s and 1980s. The IV files were kept

extremely confidential until late 2012. Furthermore, Hacker’s IV file shows that defendant

BSA officials denied and even publicly disclaimed knowledge of Hacker’s history of sexual

abuse at the time of his arrest in 1988. Because plaintiff had no reason to know about the

existence of the IV files before 2012, and even had a legitimate basis for believing that

defendant BSA had no knowledge of Hacker’s history as a pedophile, a reasonable jury could

find that plaintiff did not know and had no reason to suspect that the Boy Scout defendants

had acted wrongfully until 2012.

¶ 103 Furthermore, given defendant BSA’s representations that its program and adult

leaders were safe and trustworthy, and given the relationship of trust that defendant BSA

promoted, a reasonable jury could find that plaintiff had no duty to investigate the liability of

defendants for his abuse. Child sexual abuse is an activity that may be reasonably viewed as

conduct that defendant BSA, like the Diocese in Wisniewski, “would never tolerate.”

Accordingly, a reasonable jury could find that plaintiff was not required to “presume

unfaithfulness” on the part of defendant BSA and investigate their knowledge about Hacker’s

history of sexual abuse.

¶ 104 The Boy Scout defendants argue that plaintiff cannot invoke the fraudulent

concealment statute because he knew or should have known that he had a cause of action

well before his claim expired in 1993. For the sake of argument, we will assume that

plaintiff’s claim, if not revived by the fraudulent concealment statute, would have expired in

48
 No. 1-15-2406

1993. The Boy Scout defendants argue that plaintiff cannot rely on the fraudulent

concealment statute because he knew, as early as 1988, that he had been abused, that he had

sustained a physical injury from the abuse, and that the abuse was wrongful, as evidenced by

the fact that he was interviewed in 1988 in connection with Hacker’s arrest for sexually

abusing boy scouts. For the sake of argument, we will assume that plaintiff knew all of these

things by 1988. On the basis of these facts, the Boy Scout defendants attempt to distinguish

Wisniewski and analogize instead to Clay v. Kuhl, 189 Ill. 2d 603 (2000), Turner v. Nama,

294 Ill. App. 3d 19 (1997), and Real v. Kim, 112 Ill. App. 3d 427 (1983). However, Clay,

Turner and Real are readily distinguishable, and thus Wisniewski is controlling.

¶ 105 In Clay, the first case cited by the Boy Scout defendants, the plaintiff sued a religious

order and a brother of the order alleging that the brother had sexually abused her during her

childhood from 1972 to 1979. Clay, 189 Ill. 2d at 605. The plaintiff alleged that the religious

order had known of the brother’s propensity for sexually abusing children but had

negligently and recklessly failed to protect her against the abuse. Clay, 189 Ill. 2d at 605. The

plaintiff experienced psychological problems subsequent to the abuse but did not draw a

connection between these problems and the abuse until 1994. Clay, 189 Ill. 2d at 605-06. She

filed her action in 1996. Clay, 189 Ill. 2d at 605. The defendants moved to dismiss the

plaintiff’s action on the grounds that it was time-barred. Clay, 189 Ill. 2d at 608. The plaintiff

argued that her action was timely under the discovery rule, because she had not discovered

her injury until 1994. Clay, 189 Ill. 2d at 608. The court held that the action was untimely

under the discovery rule because the plaintiff had sufficient information about her injury and

its cause to bring suit long before 1994. Clay, 189 Ill. 2d at 610. The court stressed that the

plaintiff was always aware of the misconduct charged and did not allege that she had

49
 No. 1-15-2406

repressed memories of the abuse. Clay, 189 Ill. 2d at 610. The court also emphasized that

there is no requirement that a plaintiff must know the full extent of his or her injuries before

bringing suit. Clay, 189 Ill. 2d at 611.

¶ 106 The present case is distinguishable from Clay primarily because Clay was not a

fraudulent concealment case. Clay, 189 Ill. 2d at 613. While the plaintiff in Clay attempted to

analogize to fraudulent concealment cases, she was not alleging that the defendants

fraudulently concealed her action. Clay, 189 Ill. 2d at 613. This is an important distinction

because a plaintiff’s burden under the common-law discovery rule is different than a

plaintiff’s burden when the plaintiff alleges fraudulent concealment. Compare Hagney, 147

Ill. 2d at 464-66, with Clay, 189 Ill. 2d at 608. Under the discovery rule, a party’s cause of

action accrues “when the party knows or reasonably should know of an injury and that the

injury was wrongfully caused.” Clay, 189 Ill. 2d at 608. By contrast, a party alleging

fraudulent concealment may argue that the trust or confidence reposed in the defendant

prevented timely discovery of the action. Hagney, 147 Ill. 2d at 464-66. Because this issue is

unique to fraudulent concealment cases, the Boy Scout defendants’ arguments based on cases

that do not involve allegations of fraudulent concealment are inapposite.

¶ 107 In Turner, the second case cited by the Boy Scout defendants, the decedent claimed

that she was under the defendant’s medical care from 1982 to 1993. Turner, 294 Ill. App. 3d

at 23. She alleged that in 1990, the defendant performed tests on her that indicated that she

had carcinoma, although she was not informed of these test results until 1993, after another

doctor diagnosed her with cancer. Turner, 294 Ill. App. 3d at 22-23. After this later

diagnosis, the defendant told the decedent that he had sent her the test results in 1990,

although the decedent claimed she never received them. Turner, 294 Ill. App. 3d at 22-23. At

50
 No. 1-15-2406

that point, in 1993, there were still eight months left before the decedent’s medical

malpractice claim was set to expire in 1994. Turner, 294 Ill. App. 3d at 28. The decedent

died in 1995. Turner, 294 Ill. App. 3d at 23. The plaintiff sued the defendant in 1995, after

the decedent’s death. Turner, 294 Ill. App. 3d at 22-23. The plaintiff claimed that, if the

doctor had sent the letter, then he was negligent in failing to confirm that the decedent had

received the letter because, as a doctor, he was under a duty to ensure that his patient was

informed of her cancer diagnosis. Turner, 294 Ill. App. 3d at 23. Alternatively, the plaintiff

claimed that if the defendant had not sent the letter, then he had fraudulently concealed his

negligence by telling the decedent that he had sent it. Turner, 294 Ill. App. 3d at 23-24.

¶ 108 The appellate court affirmed dismissal of the plaintiff’s complaint. Turner, 294 Ill.

App. 3d at 34. The court reasoned that, as of the date of the defendant’s 1993 statement that

he had sent the results in 1990, the decedent knew or should have known that she had a claim

for medical malpractice against him. Turner, 294 Ill. App. 3d at 27. Based on the defendant’s

statement, the plaintiff should have known that he had either been negligent in failing to

confirm that she had received the test results or that he had fraudulently concealed his

negligence by falsely claiming that he sent the letter. Turner, 294 Ill. App. 3d at 27. In any

event, the decedent reasonably should have known in 1993—with eight months left before

her claim was set to expire in 1994—that she had a cause of action against the defendant.

Turner, 294 Ill. App. 3d at 27.

¶ 109 Turner is distinguishable from the present case. In Turner, the decedent had all of the

information pertaining to her cause of action against the doctor in 1993, before her claim

expired. The plaintiff’s alternative theories regarding the defendant’s liability were both

based on information that the decedent was aware during the limitations period. By contrast,

51
 No. 1-15-2406

in the present case plaintiff bases his cause of action on his discovery of the IV files, which

he indisputably could not have discovered until late 2012. The Boy Scout defendants argue

that plaintiff should have discovered his cause of action well before his claim allegedly

expired in 1993, based on his knowledge that he was abused, that he sustained a physical

injury, and that Hacker was tried for sexually abusing other boy scouts. However, the Boy

Scout defendants do not explain how this knowledge regarding Hacker’s wrongful conduct

somehow placed plaintiff on notice of defendants’ negligence, especially when plaintiff

alleges that he did not discover this cause of action because the Boy Scout defendants were

fraudulently concealing the facts giving rise to it. Accordingly, we do not find Turner

controlling here.

¶ 110 In Real, the third case cited by the Boy Scout defendants, the plaintiff sued the

defendant for medical malpractice, alleging that the defendant had negligently misdiagnosed

his decedent in 1976. Real, 112 Ill. App. 3d at 435. In 1979, the decedent was diagnosed with

brain cancer. Real, 112 Ill. App. 3d at 435. The limitations period for the medical malpractice

against the defendant expired in 1980, 10 months after the decedent’s cancer diagnosis. Real,

112 Ill. App. 3d at 435-36. The plaintiff filed suit against the defendant in 1981, alleging that

the defendant was estopped from asserting the statute of limitations as a defense because any

delay in filing suit was caused by defendant’s negligent misdiagnosis. Real, 112 Ill. App. 3d

at 430. The court held that the plaintiff’s claim was time-barred because, at the time of the

correct diagnosis, the decedent knew or should have known that he was misdiagnosed in

1976. Real, 112 Ill. App. 3d at 435-36. As a result, he had the burden of investigating

whether or not he had a claim for medical malpractice with ample time (10 months) left in

the limitations period. Real, 112 Ill. App. 3d at 435-36. Accordingly, the court held that

52
 No. 1-15-2406

defendant was not estopped from asserting the statute of limitations defense. Real, 112 Ill.

App. 3d at 436.

¶ 111 The Boy Scout defendants’ reliance on Real is not persuasive for the same reasons

that Clay and Turner are distinguishable. First, like the plaintiff in Clay, the plaintiff in Real

did not allege that the defendant fraudulently concealed his claim, as the court made clear.

Real, 112 Ill. App. 3d at 436. Accordingly, Real does not impact our fraudulent concealment

analysis. Second, the plaintiff in Real, like the plaintiff in Turner, was on notice of all facts

relevant to his cause of action within the limitations period. Thus, Clay, Turner and Real,

cited by the Boy Scout defendants, do not alter our conclusion that summary judgment was

properly denied.

¶ 112 Furthermore, the Boy Scout defendants’ attempts to distinguish Wisniewski are

unconvincing. The Boy Scout defendants highlight two differences between Wisniewski and

the present case. First, they observe that Wisniewski did not believe that Kownacki’s abuse

of him was wrongful, whereas plaintiff knew during the limitations period that Hacker’s

abuse of him was wrongful. Next, they observe that Wisniewski suffered no injury from the

abuse until 2002, whereas plaintiff suffered a physical injury and emotional distress from the

abuse during the period of abuse. Neither of these differences warrant distinguishing

Wisniewski.

¶ 113 First, defendants’ arguments are not persuasive that plaintiff knew during the

limitations period that his abuse was “wrongful.” Defendants argue that plaintiff’s knowledge

that Hacker was tried for sexually abusing boy scouts is evidence of plaintiff’s knowledge

that Hacker’s abuse of him was “wrongful.” As noted above, a plaintiff’s knowledge of abuse

and his knowledge that it was wrongful can trigger the statute of limitations under the

53
 No. 1-15-2406

discovery rule. Clay, 189 Ill. 2d at 608. However, the principle from Clay does not

unequivocally apply when a plaintiff is alleging that the defendant fraudulently concealed the

wrongfulness of its own actions. See Hagney, 147 Ill. 2d at 464-66. Here, the only

wrongfulness at issue is that of the Boy Scout defendants, whom plaintiff accuses of

concealing their culpability. Since a factual issue exists as to whether plaintiff’s trust and

confidence in the Boy Scout defendants prevented him from discovering that they had acted

wrongfully, plaintiff’s knowledge that Hacker’s abuse of him was wrongful is insufficient to

distinguish Wisniewski.

¶ 114 Second, Wisniewski is not distinguishable on the grounds that plaintiff, unlike

Wisniewski, suffered physical and emotional injuries as a result of the abuse before his claim

expired. The Boy Scout defendants correctly observe that plaintiff bled at least once after

being anally raped by Hacker and that he experienced emotional distress during the period of

Hacker’s molestation. However, plaintiff clearly had no desire to initiate legal proceedings

against Hacker based on these injuries alone. Plaintiff’s decision to forego litigation against

Hacker does not preclude him from bringing suit against the Boy Scout defendants for

negligence. Furthermore, the evidence shows that plaintiff suffered new and distinct injuries

in 2013. In his affidavit, Dr. Jon R. Conte, Ph.D., avers that plaintiff suffered new and

distinct psychological injuries arising from his discovery of the Boy Scout defendants’

allegedly wrongful conduct in 2013. In this sense, plaintiff’s injuries are similar to

Wisniewski’s, which did not arise until he first entertained the possibility that the Diocese

had allowed his abuse to happen in 2002. Because the injuries for which plaintiff is suing far

exceed the injuries that plaintiff was aware of during the limitations period, Wisniewski is not

distinguishable on that basis.

54
 No. 1-15-2406

¶ 115 In sum, we are not persuaded by the case law that defendants rely on, or their

attempts to distinguish Wisniewski. As such, we continue to conclude that a factual issue

remains as to whether or not defendants’ alleged concealment prevented plaintiff from

discovering his cause of action against them until late 2012 and, depending on the answer to

this question, the fraudulent concealment statute may permit his action.

¶ 116 CONCLUSION

¶ 117 On this interlocutory appeal, the trial court certified the following question to this

court:

“Does the fraudulent-concealment statute of limitations permit a plaintiff to

maintain an otherwise time-barred action for child sexual abuse when he testifies that

he knew, before the action was time-barred, that he had sustained a physical injury

from the abuser’s conduct and that the abuser had been arrested and tried for similar

crimes?”

¶ 118 As noted above, the word “permit” means “to allow” or “to make something

possible.” Merriam-Webster Online Dictionary, http://www.merriam-

webster.com/dictionary/permit (last visited Sept. 29, 2016). Thus the question asks to decide

whether a suit is possible under the stated conditions.

¶ 119 In sum, a “no” answer to the above question would mean that, as a matter of law, a

plaintiff’s knowledge that he had sustained a physical injury and that his abuser was arrested

and tried for similar crimes, would bar a plaintiff from invoking the fraudulent concealment

statute under all circumstances and against any party who could be potentially liable. We

cannot agree with this proposition.

¶ 120 As a result, and for the foregoing reasons, we answer “yes” to the certified question.

55
 No. 1-15-2406

¶ 121 Certified question answered.

¶ 122 JUSTICE LAMPKIN, dissenting.

¶ 123 I respectfully dissent. I would decline to address the certified question. As often

happens, the certified question is framed as a question of law, but the ultimate disposition

depends on the resolution of a host of factual predicates. Dowd & Dowd, Ltd. v. Gleason, 181

Ill. 2d 460, 469 (1998); see also Morrissey v. City of Chicago, 334 Ill. App. 3d 251, 258

(2002). Thus, any answer this court provides is an advisory opinion (Dowd & Dowd, 181 Ill.

2d at 469), and Illinois courts do not issue advisory opinions to guide future litigation

(Golden Rule Insurance Co. v. Schwartz, 203 Ill. 2d 456, 469 (2003)). This case is no

exception.

¶ 124 Supreme Court Rule 308, which governs interlocutory appeals, is an exception to the

general rule that only final orders from a court are subject to appellate review. Morrissey,

334 Ill. App. 3d at 257. Rule 308 was intended to be used sparingly and limited to those

special circumstances set forth in the rule; it was never intended to serve as a vehicle to

appeal interlocutory orders involving little more than an application of the law to the facts of

a specific case. Thomas v. Page, 361 Ill. App. 3d 484, 494 (2005).

¶ 125 The circuit court’s order denying summary judgment was based on the existence of

questions of fact, and the certified question, as phrased, involves factual considerations for

the jury to decide. After reviewing the briefs and record in this case, I do not believe this

certified question presents a question of law. Therefore, I would vacate our order allowing

this interlocutory appeal and dismiss this appeal.

56