dissenting.
I dissent. I joined Judge Holstein’s dissenting opinion in Sheehan v. Sheehan, 901 S.W.2d 57, 59 (Mo. banc 1995). I still believe that the majority in Sheehan, as well as the majority here, state an “objective” standard, but apply a “subjective” one. Under an objective standard, a reasonable and competent 15-to-17-year-old man would know that he suffered harm from repeated sexual abuse by his teachers at a religious school.1
Assuming there is an evidentiary issue here, the majority has misplaced the bur*593den of proof regarding the repressed memory exception. Defendants bear the burden of proof to establish that a claim is barred by the statute of limitations and they have met this burden. The alleged abuse occurred from 1973 to 1975 and suit was brought in 2002. Twenty-seven years had passed.
Plaintiff now bears the burden of proof to establish an avoidance of the statute of limitations based on repressed memory. “The party who relies on facts in avoidance of the statute has the burden of proving such facts.” Scanlon v. Kansas City, 325 Mo. 125, 28 S.W.2d 84, 92 (1930). “As the party claiming the exemption, plaintiff had the burden of showing exemption from the operation of the statute of limitations.” Kellog v. Kellog, 989 S.W.2d 681, 685 (Mo.App.1999).
As discussed in Chief Justice Wolffs opinion, plaintiff was asked “[D]id you know, always know that you had been molested and remembered it from the beginning without any assistance from others?” He answered ‘Yes.” Even if plaintiff submits other evidence to contradict this testimony, such evidence cannot carry his burden to establish repressed memory.
Where a party relies on the testimony of a single witness to prove a given issue, and the testimony of such witness is contradictory and conflicting, one version thereof tending to prove the issue, the other tending to disprove it, with no explanation of the contradiction, and no other fact or circumstance in the case tending to show which version of the evidence is true, no case is made, and the jury should not be permitted to speculate or guess which statement of the witness should be accepted.
Adelsberger v. Sheehy, 332 Mo. 954, 59 S.W.2d 644, 647 (1933). “A party may not avoid summary judgment by giving inconsistent testimony and then offering the inconsistencies into the record in order to demonstrate a genuine issue of material fact.” ITT Com. Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 388 (Mo. banc 1993). “This is not so much a matter of being bound by what his witness says as it is a failure of proof of an essential fact.” Draper v. Louisville & N.R. Co., 348 Mo. 886, 156 S.W.2d 626, 633-34 (banc 1941).
Having admitted that he knew at the time that he had been molested and that he “remembered it from the beginning without any assistance from others,” plaintiff has precluded himself from proving the contrary. He cannot prove that his memory was repressed and he cannot avoid the running of the statute of limitations in this case. Further discovery can be of no value, but just needless expense to all of the parties.
One cannot read the record before us without great sympathy for Michael Powel. He tells of sexual abuse from family and teachers and then a life of promiscuity and pain. But the claims he makes arise from facts that occurred 27 years before the filing of his lawsuit. The evidence is stale; witnesses are lost. Any remedial value is too little and too late. Continuing this lawsuit serves neither the letter, nor the spirit of the law.
I would affirm the trial court’s judgment.
. I agree with the majority and Chief Justice Wolff that there may be victims who are so young or lacking in understanding that they might not ascertain that they have been abused or harmed. No such exception was argued here.