Ross v. Garabedian

Ireland, J.

This is an appeal from the allowance of a motion for summary judgment in favor of the defendant in an action arising out of a homosexual relationship between an adult and a teenager more than thirty years ago. After reviewing affidavits from the plaintiff, his therapist, and a psychiatrist, a Superior Court judge ruled that the statute of limitations barred the plaintiff’s suit. We transferred the case to this court on our own motion. On appeal, we consider whether G. L. c. 260, .§ 4C, delays the accrual of a cause of action of a victim of sexual abuse where the plaintiff knew the activity occurred, but failed to make the “causal connection” between the defendant’s misconduct and the resulting harm. Because triable issues of fact exist regarding when the plaintiff was aware of the “causal connection” between the defendant’s conduct and the resulting harm to the plaintiff, we vacate the grant of summary judgment and remand for further proceedings consistent with this opinion.

*3611. Background. From approximately 1968, the plaintiff, then thirteen years old, engaged in a sexual relationship with the defendant, then twenty-seven years old, that continued until approximately 1971. The sexual contact produced feelings of guilt and shame in the plaintiff. These emotions stemmed from his sense that sexual activity of this sort was “wrong” in the eyes of “society and the Catholic Church.” When he was approximately fifteen years old, the plaintiff ended the relationship. During the next thirty years, plaintiff experienced numerous failed relationships and suffered from psychological and emotional difficulties. In 1978, he sought counselling for problems he was having with his then girl friend.1 In March, 1996, the plaintiff entered into psychotherapy with a different therapist, Christopher Gruener. From the beginning of their therapist-patient relationship, the plaintiff “consciously conceived of his sexual involvement with [the defendant] as wrong and shameful, primarily because of the homosexual nature of the exchange.” According to Gruener, however, the plaintiff had only “begun to be aware of the possibility of some connection between his experience with [the defendant] and some of his presenting symptoms,” by the spring of 1997. The plaintiff’s inability to “link” psychological harm to the defendant’s conduct stemmed from “unconscious coping or blocking mechanisms” commonly found in victims of sexual abuse. In November, 1998, at the behest of his attorney, the plaintiff underwent' an evaluation by psychiatrist Dr. Larry Strasburger. During the evaluation, the plaintiff admitted that he was “scared” during the sexual encounters with the defendant, “get[s] ill thinking about [the conduct]” and realizes he “should never have been there.”2 Dr. Strasburger concluded that “[o]nly now, some thirty years later has he begun to make the connection between his childhood experiences and his adult behavior.” The experts’ reports conclude that the plaintiff was suffering *362from a posttraumatic stress disorder as a result of the defendant’s ‘ sexual conduct toward him when he was a minor.

At some point during the first six months of his treatment with Gruener, the plaintiff contemplated litigation against the defendant. A complaint was not filed, however, until January, 1999, at which time the plaintiff alleged that he suffered psychological harm as a result of a consensual sexual relationship with the defendant in 1967.* 3 After admitting that there had been such a relationship, the defendant moved for summary judgment on statute of limitations grounds. For the reasons set forth by the defendant and on the authority of Phinney v. Morgan, 39 Mass. App. Ct. 202, 205 (1995), the Superior Court judge granted the defendant’s motion. On appeal, the plaintiff argues that, because he lacked any awareness that he had been harmed by the defendant until entering psychotherapy in March, 1996, the statute of limitations had been tolled. He asserts that the suit is timely given its commencement within three years of the discovery of the causal connection between the defendant’s conduct and the resulting psychological and emotional damage.

2. Discussion. General Laws c. 260, § 4C,4 automatically tolls the limitations period on child sexual abuse cases until the victim reaches the age of eighteen years and, at that point, fixes a three-year bar on such claims. By using the phrase, “or within three years of the time the victim discovered or reasonably should have discovered that an emotional or psychological injury or condition was caused by said act,” in the statute, the Legislature extended the “discovery rule” to sexual abuse cases *363such as the one before us.5 G. L. c. 260, § 4C. See Phinney v. Morgan, supra at 205 (Legislature determined discovery rule should extend to claims against perpetrator of abuse). Pursuant to this rule, causes of action do not accrue for limitations purposes until the plaintiff knew or should have known that he has been harmed by the defendant’s conduct. Riley v. Presnell, 409 Mass. 239, 243 (1991) (extending discovery rule to psycho-therapeutic malpractice). Franklin v. Albert, 381 Mass. 611, 617 (1980) (extending discovery rule to medical malpractice).

Where a defendant raises the statute of limitations, we must determine if a material question of fact exists as to whether the plaintiff “had ‘(1) knowledge or sufficient notice that [he] was harmed and (2) knowledge or sufficient notice of what the cause of harm was.’ ” Riley v. Presnell, supra at 244, quoting Bowen v. Eli Lilly & Co., 408 Mass. 204, 208 (1990). On the record before us, we hold that such material questions of fact exist. See Phinney v. Morgan, supra at 209, citing Riley v. Presnell, supra at 240 (“we recognize that ordinarily when a plaintiff knew or should have known of [his] cause of action is a factual issue to be decided by a trier of fact”).

Regarding the first element, it is undisputed that the plaintiff was, at all times, aware that he engaged in an improper relationship that produced feelings of shame. Regarding the second element, a survey of factually similar trial court rulings indicates a reluctance to grant summary judgment where it is unclear whether, and to what extent, a plaintiff perceived a “causal connection” between a defendant’s misconduct and the plaintiff’s alleged psychological harm.6 Consistent with that trend, we believe issues of fact exist regarding when the plaintiff had *364knowledge or sufficient notice, or reasonably should have known, that the cause of his harm was the earlier misconduct of the defendant. The record unequivocally indicates that the “causal connection” between the defendant’s abuse and the plaintiff’s alleged harm was not discovered until the defendant entered therapy in 1996. See Riley v. Presnell, supra at 246 (statute of limitations tolled, in part, because plaintiff “could not make the necessary causal link” between defendant’s improper sexual behavior and resulting psychological injuries; response deemed “normal among the ‘general patient population’ who ‘had been exposed to this type of exploitation’ ”). These issues, moreover, are clearly “material” given the Legislature’s direction that “the time the victim . . . discovered that an emotional or psychological injury or condition was caused by [the alleged] act,” is a legally relevant consideration in cases such as these. G. L. c. 260, § 4C. Because the record indicates that the case commenced within three years of the realization of that “causal connection,” summary judgment on statute of limitations grounds should not have been granted.

In granting summary judgment, the judge adopted the defendant’s argument that Phinney v. Morgan, supra at 205, is dispositive. The defendant contends that “whether a plaintiff should have known that he had been injured by long ago abusive conduct in order to toll the applicable statute of limitations” is determined solely by applying the Phinney factors, namely: (1) an unawareness that the defendant committed a wrongful act at the time of its commission; (2) the plaintiff’s trust in the defendant; (3) the defendant’s control over the facts giving rise to the plaintiff’s cause of action; and (4) the necessity of a triggering event that makes the plaintiff aware of the defendant’s potential liability.7 Id. (finding claims untimely). Although judges attempting to pinpoint the moment at which a particular cause of action accrues may find these factors helpful, we do not consider the Phinney list exhaustive. See Flanagan v. Grant, 79 F.3d 1, 2 (1st Cir. 1996) (per curiam) (Phinney “lends support” to decision, but Phinney factors not applied). First, the Phinney case did not turn on G. L. c. 260, § 4C, and is thus *365distinguishable from this case. Id. at 202 (suit brought against mother for failure to protect plaintiffs from sexual abuse). Second, judges have demonstrated a willingness to resolve summary judgment motions involving the statute of limitations without limiting their inquiry to the Phinney factors. See, e.g., Armstrong v. Lamy, 938 F. Supp. 1018, 1038-1041 (D. Mass. 1996) (disposing of motion without relying on Phinney factors); Szymczuk vs. Szymczuk, Middlesex Superior Court, No. Civ. A. 923581 (March 5, 1996), affd, Avola v. Szymczuk, 44 Mass. App. Ct. 1114 (1998) (same). Thus, while Phinney v. Morgan, supra at 205, properly recognized “that because of the nature of the injury and the relationship of the parties, a child may . . . be unaware of any harm or its cause until years after the abuse” (emphasis added), we do not believe the inquiry into such cause should be limited to those articulated factors.

We also reject the argument that the plaintiff’s contemporaneous knowledge that the contested behavior was “wrong” and “shameful” constituted sufficient “harm” to trigger the statute of limitations. For the statute of limitations to be triggered, the plaintiff must suffer some “appreciable harm,” Swasey v. Barron, 46 Mass. App. Ct. 127, 129 (1999) (legal malpractice), but need not know the full extent of his alleged injuries. Bowen v. Eli Lilly & Co., 408 Mass. 204, 207 (1990). For example, in Armstrong v. Lamy, supra at 1040, the defendant argued that, where the plaintiff felt “uncomfortable,” “scared,” and “nervous” at the time of the sexual contact, had insomnia during the time period of the sexual contact, and felt pain from his arm’s being gripped, such “constitute[d] enough injury, as a matter of law, to put [the plaintiff] on notice, at the time of the sexual contact, that he had been injured and by whom.” In denying the individual defendant’s motion for summary judgment, the judge stated “any evidence that [the plaintiff] was ‘uncomfortable’ or refused to participate in some aspect of the sexual contact, is not enough to support a decision, as a matter of law, that he suffered an ‘injury,’ or to determine that beyond genuine dispute [the plaintiff] knew or should have known he had been harmed.” Id. Rather, in the context of the parties’ relationship (i.e., teacher-student), “a finder of fact could reasonably find that the[] fleeting moments of physical pain were not perceived by [the plaintiff] at the time as ‘injury.’ ” Id. Furthermore, in cases where summary judgment has been granted, the alleged injuries were more extensive and tangible *366than the shame and sense of wrong that are involved here. See, e.g., Phinhey v. Morgan, supra at 208 (plaintiffs discussed bringing suit against parents; one ran away from home three times because of abuse); Flanagan v. Grant, supra at 2 (plaintiff filed criminal charges against father and manifested strong desire to escape repeated abuse).

Here, that the plaintiff knew his conduct was shameful and wrong does not “provide [him] with the modicum of knowledge required to trigger the statute of limitation[s].” Phinney v. Morgan, supra at 209. A rational finder of fact could find that the plaintiff, a teenager at the time, felt shame or a sense of wrong because his conduct was contrary to accepted church or family morals, but he was not aware that he had suffered any appreciable or legally recognizable “harm.” See Armstrong v. Lamy, supra at 1040; Gagne vs. O’Donoghue, Worcester Superior Court, No. Civ. A. 941158 (June 26, 1996) (although alleged acts caused plaintiff to feel sick and embarrassed, whether plaintiff recognized that harm and conduct were “causally related” constitutes genuine issue of material fact).

Next, it is not sufficient to claim that the plaintiff should have linked the emotional difficulties in his life with the defendant’s misconduct decades ago. The record suggests that there are other incidents from the plaintiff’s childhood (e.g., “explosions” and “raging” between the plaintiff’s parents due to his father’s alcoholism; drug and alcohol use during his early adolescence) that he might reasonably have identified as the source of his problems. These reasons, together with the plaintiff’s psychological coping mechanisms prevent us from concluding that, as a matter of law, the plaintiff knew or should have known that he suffered harm caused by the defendant to trigger the statute of limitations. Riley v. Presnell, supra at 245, quoting Bowen v. Eli Lilly & Co., supra at 208 (court considers “reasonable person in the position of the plaintiff” (emphasis omitted).8

*367We make one final observation. The plaintiff’s deposition testimony indicates that he participated in “three or four” sessions with a therapist recommended by a “friend of the family.” Although the plaintiff does not recall that therapist’s name, the address of the individual who recommended that therapist is in the record and, thus, should be readily available to either party. If, based on further discovery, the judge determines that, at the time of the 1978 therapy sessions, the plaintiff was aware that the problems in his relationship were “causally connected” to the defendant’s conduct, a subsequent summary judgment motion would be appropriate. Absent such findings, the plaintiff has proved the existence of a triable issue of fact, thereby rendering summary judgment inappropriate.

For the reasons stated above, we vacate the entry of summary judgment. The case is remanded to the Superior Court for further findings regarding the content of the plaintiff’s 1978 therapy sessions.

So ordered.

Given the plaintiff’s inability to recall the name of the therapist who treated him, discovery regarding the content of these sessions has not yet been undertaken. In his affidavit, the plaintiff states that, during these sessions, “[t]he subject of my sexual experiences with [the defendant] never came up at all. I never brought it up and I was never asked about it.” For the reasons discussed below, further discovery into this matter is warranted.

The record suggests that the plaintiff’s memory of the events at issue has remained constant and unimpaired for over three decades and, thus, this case does not involve any issue concerning repressed memory. Contrast Shahzade v. Gregory, 930 F. Supp. 673 (D. Mass. 1996).

The plaintiff’s amended complaint contains the following causes of action: sexual assault and battery, intentional and reckless infliction of severe emotional distress, aiding and abetting others to abuse the plaintiff sexually, aiding and abetting others to inflict serious emotional distress on the plaintiff.

General Laws c. 260, § 4, inserted by St. 1993, c. 307, provides in relevant part: “Actions for assault and battery alleging the defendant sexually abused a minor shall be commenced within three years of the acts alleged to have caused an injury or condition or within three years of the time the victim discovered or reasonably should have discovered that an emotional or psychological injury or condition was caused by said act, whichever period expires later; provided, however, that the time limit for commencement of an action under this section is tolled for a child until the child reaches eighteen years of age.”

While the statute was not in effect at the time of the harmful conduct, the parties do not contest its application to the case at bar.

No legislative history exists to facilitate our understanding of the statutory language.

Compare Gagne vs. O’Donoghue, Worcester Superior Court, Civ. A. No. 941158 (June 26, 1996) (no summary judgment where, through counselling, “beginning of a certain linkage” emerged between current emotional difficulties and sexual abuse thirteen years earlier); Boudrot vs. Russo, Middlesex Superior Court, No. Civ. A. 950776 (Mar. 5, 1996) (no dismissal where case filed within three years of plaintiff’s realizing abuse caused emotional problems); Legaski vs. Melanson, Middlesex Superior Court, No. Civ. A. 940592 (Oct. 5, 1994) (no dismissal where case brought within three years of therapy that enabled plaintiff to make “causal connection” between defendant’s conduct and resulting injuries), with Howard vs. Colety, Essex Superior Court, No. Civ. A. 952910B (Aug. 29, 1996) (plaintiff’s failure to “make the connection between the incidents of abuse, and the resulting harm she suffered” not relevant to decision granting summary judgment).

For cases applying the Phinney factors, see, e.g., Doe vs. Commonwealth, Essex Superior Court, No. Civ. A. 970166A (July 20, 2000); Nault vs. New England Annual Conference of the United Methodist Church, Suifolk Superior Court, No. Civ. A. 9503457 (June 14, 1996).

As for the plaintiff’s remaining counts, we similarly apply the discovery rule, as embodied in G. L. c. 260, § 4C. See Eilert vs. Carey, Worcester Superior Court, No. Civ. A. 951227A (June 2, 1998), citing Riley v. Presnell, 409 Mass. 239, 243 (1991). Where, as here, (1) the causes of action arise from the same alleged sexual abuse and (2) similar issues of material fact exist regarding when the plaintiff made the “causal connection” necessary to trigger the emotional distress statute of limitations, the remaining counts *367survive summary judgment. Riley v. Presnell, supra, quoting Franklin v. Albert, 381 Mass. 611, 617 (1980) (absent statutory definition regarding when cause of action accrues, determination is “the product of judicial interpretation in this Commonwealth”).