#26000 - #26009-a-SLZ
2012 S.D. 64
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
****
(#26000)
(N.O.R. #26034, #26042, #26045)
TERESA BERNIE, Plaintiff and Appellant,
v.
BLUE CLOUD ABBEY; SISTERS OF
THE BLESSED SACRAMENT; and
OBLATE SISTERS OF THE BLESSED
SACRAMENT, Defendants and Appellees,
and
CATHOLIC DIOCESE OF SIOUX FALLS,
DOE PRIEST; DOE PERPETRATOR 1; DOE
PERPETRATOR 2; DOE PERPETRATOR 3;
and DOE PERPETRATOR 4,
Defendants.
****
APPEAL FROM THE CIRCUIT COURT OF
THE SECOND JUDICIAL CIRCUIT
MINNEHAHA COUNTY, SOUTH DAKOTA
****
THE HONORABLE BRADLEY G. ZELL
Judge
****
ARGUED ON MAY 22, 2012
OPINION FILED 09/05/12
---------------------------------------------------------------------------------------------------------------------
(#26001)
(N.O.R. #26035, #26047)
GALEN DRAPEAU, Plaintiff and Appellant,
v.
BLUE CLOUD ABBEY; SISTERS OF
THE BLESSED SACRAMENT; and
OBLATE SISTERS OF THE BLESSED
SACRAMENT, Defendants and Appellees,
and
CATHOLIC DIOCESE OF SIOUX FALLS,
DOE PRIEST; DOE PERPETRATOR 1; DOE
PERPETRATOR 2; DOE PERPETRATOR 3;
and DOE PERPETRATOR 4, Defendants.
---------------------------------------------------------------------------------------------------------------------
(#26002)
(N.O.R. #26036, #26043, #26046)
L.C.A.; J.C.B.; L.J.C.; G.D.; B.C.D.;
R.B.; M.L.B.; F.B.C.; Y.P.C., Plaintiffs and Appellants,
v.
BLUE CLOUD ABBEY; SISTERS OF
THE BLESSED SACRAMENT; and
OBLATE SISTERS OF THE BLESSED
SACRAMENT, Defendants and Appellees,
and
CATHOLIC DIOCESE OF SIOUX FALLS,
DOE PRIEST; DOE PERPETRATOR 1; DOE
PERPETRATOR 2; DOE PERPETRATOR 3;
and DOE PERPETRATOR 4, Defendants.
---------------------------------------------------------------------------------------------------------------------
(#26003)
(N.O.R. #26037)
MARY MCGHEE DOG SOLDIER, Plaintiff and Appellant,
v.
BLUE CLOUD ABBEY, Defendant and Appellee,
and
CATHOLIC DIOCESE OF SIOUX FALLS, Defendant.
---------------------------------------------------------------------------------------------------------------------
(#26004)
(N.O.R. #26048)
ALFRED EAGLE DEER, SR., Plaintiff and Appellant,
v.
OBLATE SISTERS OF THE BLESSED
SACRAMENT, Defendant and Appellee,
and
CATHOLIC DIOCESE OF SIOUX FALLS, Defendant.
---------------------------------------------------------------------------------------------------------------------
(#26005)
(N.O.R. #26038)
RITA FAYE FLOOD, Plaintiff and Appellant,
v.
BLUE CLOUD ABBEY, Defendant and Appellee,
and
CATHOLIC DIOCESE OF SIOUX FALLS, Defendant.
---------------------------------------------------------------------------------------------------------------------
(#26006)
(N.O.R. #26044)
GROVER CURTIS MALLORY, Plaintiff and Appellant,
v.
SISTERS OF THE BLESSED SACRAMENT, Defendant and Appellee,
and
CATHOLIC DIOCESE OF SIOUX FALLS, Defendant.
---------------------------------------------------------------------------------------------------------------------
(#26007)
(N.O.R. #26039)
RODERICA ROUSE, Plaintiff and Appellant,
v.
BLUE CLOUD ABBEY, Defendant and Appellee,
and
CATHOLIC DIOCESE OF SIOUX FALLS, Defendant.
---------------------------------------------------------------------------------------------------------------------
(#26008)
(N.O.R. #26040)
LOREN RAYMOND ZEPHIER, Plaintiff and Appellant,
v.
BLUE CLOUD ABBEY, Defendant and Appellee,
and
CATHOLIC DIOCESE OF SIOUX FALLS, Defendant.
---------------------------------------------------------------------------------------------------------------------
(#26009)
(N.O.R. #26041)
ISADORE M. ZEPHIER, Plaintiff and Appellant,
v.
BLUE CLOUD ABBEY, Defendant and Appellee,
and
CATHOLIC DIOCESE OF SIOUX FALLS, Defendant.
****
(#26000 — #26002)
(N.O.R. #26034, #26035, #26036, #26042, #26043, #26045, #26046, #26047)
REBECCA L. RHOADES of
Manly & Stewart
Newport Beach, California
and
MICHAEL SHUBECK
GREGORY A. YATES
Rapid City, South Dakota Attorneys for plaintiffs and
appellants.
ROBERT STICH of
Stich, Angell, Kreidler & Dodge, PA
Minneapolis, Minnesota
and
ERIC C. SCHULTE of
Davenport, Evans, Hurwitz & Smith, LLP
Sioux Falls, South Dakota Attorneys for defendant and
appellee Blue Cloud Abbey
N.O.R. #26034, #26035, #26036.
CHRISTOPHER W. MADSEN of
Boyce, Greenfield, Pashby & Welk, LLP
Sioux Falls, South Dakota Attorneys for defendant and
appellee Sisters of the Blessed
Sacrament N.O.R. #26042,
#26043, #26047.
MICHAEL J. FORD
DYAN J. EBERT of
Quinlivan & Hughes, PA
St. Cloud, Minnesota Attorneys for defendant and
appellee Oblate Sisters of the
Blessed Sacrament N.O.R.
#26045, #26046.
(#26003)
(N.O.R. #26037)
REBECCA L. RHOADES of
Manly & Stewart
Newport Beach, California
and
MICHAEL SHUBECK
GREGORY A. YATES
Rapid City, South Dakota Attorneys for plaintiff and
appellant.
ROBERT STICH of
Stich, Angell, Kreidler & Dodge, PA
Minneapolis, Minnesota
and
ERIC C. SCHULTE of
Davenport, Evans, Hurwitz & Smith, LLP
Sioux Falls, South Dakota Attorneys for defendant and
appellee Blue Cloud Abbey
N.O.R. #26037.
(#26004)
(N.O.R. #26048)
REBECCA L. RHOADES of
Manly & Stewart
Newport Beach, California
and
MICHAEL SHUBECK
GREGORY A. YATES
Rapid City, South Dakota Attorneys for plaintiff and
appellant.
MICHAEL J. FORD
DYAN J. EBERT of
Quinlivan & Hughes, PA
St. Cloud, Minnesota Attorneys for defendant and
appellee Oblate Sisters of the
Blessed Sacrament N.O.R.
#26048.
(#26005)
(N.O.R. #26038)
REBECCA L. RHOADES of
Manly & Stewart
Newport Beach, California
and
MICHAEL SHUBECK
GREGORY A. YATES
Rapid City, South Dakota Attorneys for plaintiff and
appellant.
ROBERT STICH of
Stich, Angell, Kreidler & Dodge, PA
Minneapolis, Minnesota
and
ERIC C. SCHULTE of
Davenport, Evans, Hurwitz & Smith, LLP
Sioux Falls, South Dakota
Attorneys for defendant and
appellee Blue Cloud Abbey
N.O.R. #26038.
(#26006)
(N.O.R. #26044)
REBECCA L. RHOADES of
Manly & Stewart
Newport Beach, California
and
MICHAEL SHUBECK
GREGORY A. YATES
Rapid City, South Dakota Attorneys for plaintiff and
appellant.
CHRISTOPHER W. MADSEN of
Boyce, Greenfield, Pashby & Welk, LLP
Sioux Falls, South Dakota Attorneys for defendant and
appellee Sisters of the Blessed
Sacrament N.O.R. #26044.
#26007—#26009)
(N.O.R. #26039—#26041)
REBECCA L. RHOADES of
Manly & Stewart
Newport Beach, California
and
MICHAEL SHUBECK
GREGORY A. YATES
Rapid City, South Dakota Attorneys for plaintiffs and
appellants.
ROBERT STICH of
Stich, Angell, Kreidler & Dodge, PA
Minneapolis, Minnesota
and
ERIC C. SCHULTE of
Davenport, Evans, Hurwitz & Smith, LLP
Sioux Falls, South Dakota Attorneys for defendant and
appellee Blue Cloud Abbey
N.O.R. #26039, #26040, #26041.
#26000 - #26009
ZINTER, Justice
[¶1.] The plaintiffs and appellants are former students who attended a
boarding school. They alleged that they were sexually abused while attending the
school more than thirty-five years ago. The students commenced suits against some
alleged perpetrators and entity defendants Blue Cloud Abbey, the Sisters of the
Blessed Sacrament, the Oblate Sisters of the Blessed Sacrament, and the Catholic
Diocese of Sioux Falls. The entity defendants were alleged to have owned, operated,
or controlled the school when the abuse allegedly occurred. After a prior appeal to
this Court, 1 the circuit court granted summary judgment both for and against the
entity defendants on a large number of substantive and procedural issues. The
circuit court later granted a motion to dismiss all remaining claims against the
three entity defendants who are the appellees in these appeals. 2 Because it is
dispositive, we only address one issue raised by the entity defendants by notice of
review. We conclude that an extended statute of limitations for childhood sexual
abuse did not apply in these cases because the entity defendants were not
perpetrators who were alleged to have engaged in intentional, criminal conduct.
Because these lawsuits were filed more than twenty years after the applicable
statute of limitations expired, we affirm the circuit court’s dismissal. 3
1. Zephier v. Catholic Diocese of Sioux Falls, 2008 S.D. 56, 752 N.W.2d 658.
2. The suits against the Catholic Diocese of Sioux Falls are the subject of
separate appeals. See Bernie v. Catholic Diocese of Sioux Falls, ___ S.D. ___,
___ N.W.2d ___.
3. We disagree with the circuit court’s conclusion that the extended statute of
limitations applies to non-perpetrating entity defendants that have not
(continued . . .)
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#26000 - #26009
Facts and Procedural History
[¶2.] All plaintiffs in these consolidated appeals claim to be victims of
childhood sexual abuse committed prior to 1975 when they were students at St.
Paul’s School, which is located in Marty, South Dakota. Between 2004 and 2008,
the students commenced suits against some alleged perpetrators and some entity
defendants. 4 The complaints asserted liability against the entity defendants on the
following theories: (1) negligent hiring, retaining, and supervising persons who were
known or should have been known to be sex abusers; (2) breach of fiduciary duty in
failing to protect the students from abuse; and (3) vicarious liability under the
doctrine of respondeat superior. The circuit court ultimately dismissed on a
procedural ground. The court relied on a 2010 enactment that barred certain claims
against entity defendants. The 2010 enactment was added to SDCL 26-10-25, a
statute of limitations extending the time to commence certain actions for childhood
sexual abuse. The court concluded that the 2010 amendment applied retroactively
to bar the sexual abuse claims against the entity defendants. We address a
predicate question raised by the entity defendants on notice of review: whether the
________________________
(. . . continued)
engaged in intentional, criminal misconduct. Nevertheless, we affirm the
judgment because the circuit court dismissed on a related statute of
limitations question.
4. The students did not sue the school, which was incorporated as St. Paul’s
Indian Mission Corporation.
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#26000 - #26009
extended statute of limitations even applies to causes of action against non-
perpetrators of childhood sexual abuse. 5
[¶3.] SDCL 15-2-14 provides that except when a different limitation is
prescribed by statute, actions for personal injury “can be commenced only within
three years after the cause of action shall have accrued.” At the time the students
commenced these actions, SDCL 26-10-25 extended the time to commence certain
actions involving childhood sexual abuse. The extension gave victims time to
discover the causal relationship between the sexual abuse and the resulting injury.
SDCL 26-10-25 (1991) provided:
Any civil action based on intentional conduct brought by any
person for recovery of damages for injury suffered as a result of
childhood sexual abuse shall be commenced within three years
of the act alleged to have caused the injury or condition, or three
years of the time the victim discovered or reasonably should
have discovered that the injury or condition was caused by the
act, whichever period expires later.
5. This issue has evaded appellate review. In One Star v. Sisters of St. Francis,
Denver, Colorado, 2008 S.D. 55, ¶ 6, 752 N.W.2d 668, 674, we considered
whether suits alleging childhood sexual abuse were timely commenced
against non-perpetrating entity defendants under SDCL 26-10-25. But the
petition for review reflects that the parties assumed for purposes of another
argument that the statute applied to non-perpetrators. In Zephier v. Catholic
Diocese of Sioux Falls, 2008 S.D. 56, ¶ 3, 752 N.W.2d 658, 661, and Iron Wing
v. Catholic Diocese of Sioux Falls, 2011 S.D. 79, ¶ 6, 807 N.W.2d 108, 110, the
question was whether factually, those students commenced their suits within
three years following discovery of the causal connection between the alleged
abuse and the injuries as required in SDCL 26-10-25. Although the
applicability of SDCL 26-10-25 was raised by some entity defendants in
Zephier, not all entity defendants joined that argument. More importantly,
the circuit court had not addressed the question. Because the issue had not
been addressed by the circuit court, we remanded the issue for that court’s
initial consideration. Zephier, 2008 S.D. 56, ¶ 20, 752 N.W.2d at 667. The
question has now been decided by a circuit court and the issue is squarely
presented for appellate review.
-3-
#26000 - #26009
[¶4.] The students argue that they are entitled to the extension in SDCL 26-
10-25. See One Star v. Sisters of St. Francis, 2008 S.D. 55, ¶ 13, 752 N.W.2d 668,
675. The entity defendants respond that SDCL 26-10-25 does not apply to non-
perpetrating defendants who are sued on theories of negligence or other causes of
action not based on intentional, criminal conduct. The entity defendants point out
that the statute applies to actions that are “based on intentional conduct” involving
“childhood sexual abuse.” They also point out that childhood sexual abuse is
specifically defined as sexual abuse that is proscribed by the criminal code. See
SDCL 26-10-29. The entity defendants contend that the circuit court erred in
allowing the students to utilize SDCL 26-10-25 because the entity defendants were
not alleged to have engaged in “intentional acts” of “childhood sexual abuse” that
was proscribed by the criminal code.
Decision
[¶5.] The construction and application of statutes of limitation present legal
questions that we review de novo. Jensen v. Kasik, 2008 S.D. 113, ¶ 4, 758 N.W.2d
87, 88. In reviewing summary judgment, “affirmance is suitable if any legal basis
exists to support the court’s decision.” Horne v. Crozier, 1997 S.D. 65, ¶ 5, 565
N.W.2d 50, 52.
[¶6.] SDCL 26-10-25 applies to “[a]ny civil action based on intentional
conduct brought by any person for recovery of damages for injury suffered as a
result of childhood sexual abuse.” (Emphasis added.) For purposes of this statute,
childhood sexual abuse is defined in SDCL 26-10-29 as any act committed “by the
defendant against the complainant . . . [and] which act would have constituted a
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#26000 - #26009
felony.” (Emphasis added.) The question is whether, in light of these emphasized
limitations, SDCL 26-10-25 applies to claims against non-perpetrating defendants
who are sued for negligence or on other theories of liability not involving
intentional, criminal conduct. Courts that have considered this question have
reached different conclusions.
[¶7.] We are persuaded by the courts that have relied on the plain and
ordinary meaning of identical or similar language limiting application of such
statutes to claims based on intentional conduct constituting a criminal offense. For
example, the Colorado Court of Appeals considered the “plain language of the text”
that limited the Colorado statute to actions “based on . . . a sexual offense against a
child.” Sandoval v. Archdiocese of Denver, 8 P.3d 598, 600-01 (Colo. App. 2000).
The court concluded that this limiting language, “when viewed within the context of
the entire statute,” restricted application of the statute to claims brought against
perpetrators and did not include related claims brought against third parties. Id. at
602.
[¶8.] The Colorado court acknowledged the view of other courts that the
language “based on” can be read to allow a victim’s claims if the claims simply arise
from “the factual circumstances of the sexual offense.” Id. at 601. The court
specifically acknowledged Werre v. David, 913 P.2d 625 (Mont. 1996) and C.J.C. v.
Corp. of Catholic Bishop, 985 P.2d 262 (Wash. 1999) (both applying the “based on”
intentional conduct language to negligence claims against non-perpetrators because
the perpetrator’s sexual act was the starting point or foundation for injury that
would not have occurred absent the abuse). Sandoval, 8 P.3d at 601. The Colorado
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#26000 - #26009
court also acknowledged Almonte v. New York Medical College, 851 F. Supp. 34 (D.
Conn. 1994) (applying an extended statute of limitations to claims against non-
perpetrators on the theory that public policy required the extension). Sandoval, 8
P.3d at 601. But the Colorado court concluded that when the limiting language was
“viewed within the context of the entire statute, . . . the term ‘based on’
encompasses only those civil claims brought against the perpetrator arising from
his or her sexual assault or offense.” Id. at 602. The court found it “highly
significant” that the statute was tied to sexual offenses as defined in the criminal
code, and criminal proscriptions do “not include negligently allowing an offense to
happen or placing a perpetrator in a position to commit a sexual offense against a
child.” Id.
[¶9.] Rhode Island’s decision is even more persuasive because its statute is
virtually identical to SDCL 26-10-25. Rhode Island enacted a statute of limitations
for “[a]ll claims or causes of action based on intentional conduct brought by any
person for recovery of damages for injury suffered as a result of childhood sexual
abuse . . . .” Kelly v. Marcantonio, 678 A.2d 873, 875 (R.I. 1996) (emphasis added).
The statute defined childhood sexual abuse as “any act committed by the defendant
against a complainant” that would have been a criminal act. Id. at 876 (emphasis
added). The Rhode Island Supreme Court stated that the first clause emphasized
above did not explicitly limit the statute’s application to perpetrators. Id. But the
court held that the language of the statute “permits no other interpretation” when
the two emphasized clauses were read together. Id. The court observed that the
statute requires “intentional conduct of ‘the’ defendant–perpetrator.” Id. “[B]y
-6-
#26000 - #26009
using ‘the’ as opposed to ‘a’ when referencing defendants, the Legislature limited
the class of potential defendants subject to [the extended statute of limitations].”
Id. The court also relied on the limiting language requiring “intentional conduct.”
Id. at 877. Unlike other courts reaching contrary conclusions based on public policy,
Kelly relied on the “plain and ordinary meaning” of these statutory limitations. Id.
[¶10.] Before a legislative amendment, the court in Debbie Reynolds
Professional Rehearsal Studios v. Superior Court, 30 Cal. Rptr. 2d 514 (Cal. Ct.
App. 1994), concluded that the California statute was also limited to those who
engaged in criminal conduct. The California statute applied to actions “for recovery
of damages suffered as a result of childhood sexual abuse.” Id. at 518 n.3 (citing
Cal. Civ. Proc. Code § 340.1 (West)). The statute also referenced criminal acts by
referring to “any act committed by a defendant against a plaintiff . . . and which act
would have been proscribed” by specified penal code sections. Id. at 519. The court
concluded that these “plain terms” applied “only to those defendants who
perpetrate, against minors, certain intentional criminal acts prohibited by law.” Id.
“[T]he Legislature, in defining what constitutes sexual abuse, referred to the
criminal statutes to make clear that childhood sexual abuse is an intentional rather
than a negligent act.” Id. 6
6. Four years after Debbie Reynolds, California amended its statute to provide
that it applied to “an action for liability against any person or entity who
owed a duty of care to the plaintiff, where a wrongful or negligent act by that
person or entity was the legal cause of the childhood sexual abuse which
resulted in the injury to the plaintiff.” Cal. Civ. Proc. Code § 340.1(a)(2)
(West 1999).
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#26000 - #26009
[¶11.] The Eighth Circuit Court of Appeals considered a Missouri statute of
limitations that applied to “[a]ny action to recover damages from injury or illness
caused by childhood sexual abuse.” Walker v. Barrett, 650 F.3d 1198, 1209 (8th Cir.
2011). Notwithstanding this broad language, the court rejected the argument that
the statute applied to all actions arising from childhood sexual abuse. Id. The court
pointed out that another provision provided that childhood sexual abuse was “any
act committed by the defendant against the plaintiff which act . . . would have been
a violation of [identified criminal proscriptions].” Id. The court noted that non-
perpetrating defendants could not cause injury or illness from childhood sex abuse
because non-perpetrating defendants would not have committed one of the
enumerated criminal acts. Id.
[¶12.] We find these decisions persuasive because the South Dakota
Legislature adopted the same or similar limitations. First, the plaintiff’s civil
“action” must be based on “intentional conduct.” SDCL 26-10-25. Second, the
childhood sexual abuse must have been committed by “the defendant” in the civil
action, and the abuse must be an act that would “have constituted a felony.” SDCL
26-10-29. We have previously recognized that the language of SDCL 26-10-25
applies to intentional, criminal acts. “[T]he Legislature intended SDCL 26-10-25 to
apply to all acts of intentional childhood sexual abuse conduct. This is so because
SDCL 26-10-29 defines childhood sexual abuse as ‘any act’ committed by a
defendant which act would have been a violation of SDCL [chapter] 22-22 (sex
offenses) or prior laws of similar effect at the time the act was committed which act
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#26000 - #26009
would have constituted a felony.” Stratmeyer v. Stratmeyer, 1997 S.D. 97, ¶ 15, 567
N.W.2d 220, 223 (emphasis added).
[¶13.] The students’ reliance on Almonte, Werre, and C.J.C. is misplaced.
Almonte was based on the belief that the Connecticut statute was more concerned
with a particular type of harm than with the party that caused the harm. 851 F.
Supp. at 37. Therefore, the court utilized “public policy” to extend the reach of the
statute to non-perpetrators who had not engaged in intentional conduct. Id. 7
Further, the Connecticut statute did not contain the intentional conduct or the
criminal act limitations found in the South Dakota statute and the other statutes
previously discussed. The Connecticut language was unlimited. It applied to any
action “to recover damages for personal injury to a minor, including emotional
distress, caused by sexual abuse, sexual exploitation or sexual assault.” Id. The
district court’s interpretation of the broad Connecticut statute is inapposite when
considering the limitations in SDCL 26-10-25 and 26-10-29.
7. One South Dakota federal district judge adopted the Almonte public policy
view, concluding that SDCL 26-10-25 applied to causes of action for
negligence against non-perpetrating defendants. See DeLonga v. Diocese of
Sioux Falls, 329 F. Supp. 2d 1092, 1104 (D.S.D. 2004) (stating that the
statute is concerned with the “type of harm” involved, and the statute should
be interpreted to apply to causes of actions for negligence in order to “provide
protection for victims of sexual abuse”). However, in a later case, another
South Dakota federal judge was “unable to predict the path of South Dakota
law regarding claims against non-perpetrator defendants with respect to
SDCL 26-10-25.” Joseph v. Corp. of the President Church of Jesus Christ of
Latter-Day Saints, No. CIV. 06-4143, 2008 WL 282163, at *4 (D.S.D. Jan. 31,
2008). Although the latter judge certified the question to this Court, the suit
was apparently resolved before we could decide the question.
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#26000 - #26009
[¶14.] The students point out that in Werre, the Montana Supreme Court
allowed an action against a non-perpetrator under language that is similar to South
Dakota’s. See Werre, 913 P.2d at 630 (construing a statute of limitations that
applied to actions “based on intentional conduct brought by a person for recovery of
damages for injury suffered as a result of childhood sexual abuse”). The Montana
court construed the language “based upon intentional conduct” to permit actions
based on negligence. Id. at 632. It did so because, in its view, “an action is ‘based
on intentional conduct’ if intentional sexual abuse is the starting point or
foundation for the claim.” Id. But the Montana court’s factual “starting point or
foundation” analysis overlooks the fact that statutes of limitation are based upon
the “cause of action” asserted rather than the factual starting point or foundation
that may lead to various causes of action. See SDCL 15-2-1 (providing that all civil
actions must be commenced within the periods of limitation specified in Title 15
after the “cause of action” has “accrued,” rather than the period after the factual
starting point that gives rise to the cause of action).
[¶15.] The appropriate analysis looks to the “nature of the cause of action or
the right sued upon.” Morgan v. Baldwin, 450 N.W.2d 783, 785 (S.D. 1990). In this
case, the nature of the students’ causes of action against the perpetrators is based
upon intentional conduct. Further, the right sued upon is the right to be free from a
perpetrator’s criminal sexual abuse. But the nature of the students’ causes of action
against the entity defendants is based upon negligence, breach of fiduciary duty,
and vicarious liability. And the rights sued upon are the rights to be free from non-
intentional breaches of the civil duties and responsibilities the law imposes in
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#26000 - #26009
certain relationships. Therefore, it is simply too far of a stretch to say that causes
of action for negligence, breach of fiduciary duty and vicarious liability are, in any
legal sense of the phrase, causes of action “based on” intentional, criminal conduct.
We believe Werre’s factual starting-point-foundational analysis is at odds with the
common understanding of the nature of a cause of action asserted in a particular
case. 8
[¶16.] The students’ reliance on the Washington court’s analysis in C.J.C. is
also misplaced. Although that statute is closely aligned with South Dakota’s
statute, the Washington Supreme Court applied the same factual starting point
analysis utilized in Werre. C.J.C., 985 P.2d at 267 (concluding that “an action is
‘based on intentional conduct’ if intentional sexual abuse is the starting point or
foundation of the claim”). For the reasons expressed in our analysis of Werre, we
decline to follow C.J.C.’s factual starting point analysis. We also decline to follow
C.J.C. because its conclusion was based in part on another statutory provision that
“expressly include[d] within its scope suits against negligent entities.” 985 P.2d at
268.
[¶17.] “Words and phrases in a statute must be given their plain meaning
and effect.” Pete Lien & Sons, Inc. v. City of Pierre, 1998 S.D. 38, ¶ 9, 577 N.W.2d
330, 331. In this case, the plain language of SDCL 26-10-25 and 26-10-29 requires
that the students’ causes of action be based on “intentional conduct” and that “the
defendant” in the civil action has engaged in child sexual abuse proscribed by South
8. Werre is also inapplicable because the Montana statute did not have the
South Dakota language referencing acts constituting criminal conduct.
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#26000 - #26009
Dakota’s criminal code. Because the students’ causes of action only assert liability
for negligence, breach of fiduciary duty, and vicarious liability, SDCL 26-10-25 does
not apply. 9
[¶18.] SDCL 26-10-25 was enacted to provide childhood sexual abuse victims
with extended time to commence their suits in addition to the three-year
“occurrence rule . . . provided under SDCL 15-2-14(3) and 15-2-22 [providing for
tolling during minority].” Stratmeyer, 1997 S.D. 97, ¶ 18, 567 N.W.2d at 224. But
9. The students argue the 2010 Legislature demonstrated that SDCL 26-10-25
applies to non-perpetrators because the Legislature amended that statute in
dealing with a related issue regarding non-perpetrators. “[I]t is well
established under South Dakota Law that the legislative interpretation of a
statute through the adoption of a subsequent amendment is not binding on
this court, though the court may deem it worthy of consideration in
construing the law.” Hot Springs Indep. Sch. Dist. No. 10 v. Fall River
Landowners Ass’n, 262 N.W.2d 33, 38 (S.D. 1978).
The 2010 enactment was a statute of repose that abolished the right of
persons who reached the age of forty to recover damages from non-
perpetrators of childhood sexual abuse. See 2010 S.D. Sess. Laws ch. 141.
The students contend that, by amending SDCL 26-10-25 to include the
statute of repose specifically governing non-perpetrators, the 2010
amendment demonstrates that the Legislature believed its 1991 enactment of
SDCL 26-10-25 applied to non-perpetrators. However, it is more likely that
the 2010 Legislature was reacting to recent case law. There is no dispute
that lawyers involved in this and related litigation appeared before the 2010
Legislature requesting the 2010 amendment. At that time, two South
Dakota courts had ruled that SDCL 26-10-25 applied to non-perpetrators: the
circuit court in these cases and DeLonga, 329 F. Supp. 2d 1092. Because the
Legislature was unaware that these courts had incorrectly interpreted the
statute, it is more likely that the 2010 Legislature was amending SDCL 26-
10-25 to conform to those court decisions than it was expressing its view of
what the 1991 Legislature intended when it enacted SDCL 26-10-25. “The
legislative intent that is controlling in the construction of a statute has
reference to the [L]egislature which enacted it, not a subsequent one.” Hot
Springs Indep. Sch. Dist., 262 N.W.2d at 39.
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as we have explained, SDCL 26-10-25 does not apply. Therefore, the remaining
question is whether the students’ causes of action are barred by SDCL 15-2-14(3),
the personal injury statute of limitations. “[T]he three year period [in SDCL 15-2-
14(3)] starts to run from the last occurrence of tortious conduct, rather than three
years from the discovery of the harm.” Koenig v. Lambert, 527 N.W.2d 903, 905
(S.D. 1995), overruled on other grounds by Stratmeyer, 1997 S.D. 97, 567 N.W.2d
220.
[¶19.] In this case, the students’ causes of action expired under SDCL 15-2-
14(3) and SDCL 15-2-22 more than twenty years before the students commenced
their suits. There is no dispute that all of the students were born between 1941 and
1962, and none of the students made any claim for abuse occurring after 1975.
Although SDCL 15-2-22 tolled the three-year period until one year after each of the
students turned eighteen, the youngest student turned nineteen in 1981 and all
suits were commenced in and after 2004. Therefore, none of the students
commenced his or her cause of action until more than twenty years after the time
for filing suit had expired. Because the students’ causes of action were barred by
the applicable statutes of limitation, 10 the judgment of the circuit court is affirmed.
10. On petition for rehearing, the students contend that we overlooked their
argument that the time to commence their actions was tolled by fraudulent
concealment. The students’ appellate briefs, however, contained no citations
to facts in the record supporting their argument. Instead, students argued
that the circuit court’s rulings were inconsistent and supported fraudulent
concealment. The failure to cite the complete factual record supporting a
fraudulent concealment argument is significant because more than three
decades passed since any confidential relationship existed between the
students and the school. Without citations to facts in the record reflecting
(continued . . .)
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[¶20.] GILBERTSON, Chief Justice, and KONENKAMP, SEVERSON, and
WILBUR, Justices, concur.
________________________
(. . . continued)
fraudulent concealment for this lengthy period of time, we were unable to
entertain the issue.
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