Flanagan v. Grant

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UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 95-1962

CHARLOTTE FLANAGAN,

Plaintiff, Appellant,

v.

GARY I. GRANT AND MERCIA GRANT,

Defendants, Appellees.

ERRATA SHEET
ERRATA SHEET

The opinion of this Court issued on March 27, 1996, is
amended to reflect the following change on the cover sheet:

James B. Krasnoo, with whom Paul J. Klehm and Keith B.

Hughes were on brief for appellees.

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UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 95-1962

CHARLOTTE FLANAGAN,

Plaintiff, Appellant,

v.

GARY I. GRANT AND MERCIA GRANT,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Reginald C. Lindsay, U.S. District Judge]

Before

Selya, Circuit Judge,

Campbell, Senior Circuit Judge,

and Stahl, Circuit Judge.

Carmen L. Durso, with whom Mary F. McCabe and Lynne A.

Tatirosian were on brief for appellant.

James B. Krasnoo, with whom Paul J. Klehm and Keith B.

Hughes was on brief for appellees.

March 27, 1996

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Per Curiam. Plaintiff-appellant Charlotte Flanagan

filed this diversity action against her parents, defendants-

appellees Gary and Mercia Grant, in the United States

District Court for the District of Massachusetts on November

12, 1993. Her complaint alleged that her father sexually

abused her for four years, beginning in 1980 when she was

fourteen, and that her mother actively helped to cover up the

abuse and to coerce her to drop charges against him.1

Defendants moved for summary judgment, and, in a well-

reasoned report and recommendation, the magistrate judge

recommended allowing the motion on the ground that the

complaint was time-barred by the applicable three-year

statute of limitations. Flanagan v. Grant, 897 F. Supp. 637

(D. Mass. 1995). The district court accepted the

recommendation. Plaintiff appeals.

Having considered the record, the parties' briefs,

and oral argument, we essentially agree with the lower

court's reasoning and result and see no need to go over the

same ground in the same detail. See In re San Juan Dupont

Plaza Hotel Fire Litig., 989 F.2d 36, 38 (1st Cir. 1993).

The magistrate judge correctly applied the Massachusetts

discovery rule to the facts of this case, taking into account

the controlling Massachusetts cases including the leading

1. Plaintiff claimed assault and battery, intentional or
negligent infliction of emotional distress, breach of
fiduciary duty, and violation of her civil rights.

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authority, Riley v. Presnell, 409 Mass. 239, 565 N.E.2d 780

(1991). Since issuance of the lower court's opinion, the

Appeals Court of Massachusetts has handed down another

relevant decision, Phinney v. Morgan, 39 Mass. App. Ct. 202,

654 N.E.2d 77, rev. denied, 421 Mass. 1104, 656 N.E.2d 1258

(1995). Phinney gives further support to the magistrate

judge's view that the limitations period and discovery rule

considered in Riley, a malpractice case, will apply here.2

It also lends support to the present outcome, in that, in a

fairly analogous situation involving parental incest, summary

judgment was awarded absent plaintiffs' showing of a triable

issue as to whether they or a reasonable person in their

position would have lacked sufficient notice of the cause of

their harm within the applicable time period. See Phinney,

654 N.E.2d at 81-82.

Focusing, as the lower court properly did, on when

plaintiff knew or had sufficient notice of the cause of her

2. Plaintiff's attempt to apply retroactively a recent
Massachusetts enactment codifying the discovery rule in cases
of sexual abuse of a minor does not carry her far. Even if
Massachusetts General Laws ch.260, 4C were to apply, as it
became effective December 17, 1993, after plaintiff filed her
complaint but before the answer was filed, cf. Riley, 565

N.E.2d at 788 & n.3 (looking at whether stage of proceedings
governed by legislative change on tolling had passed), it
appears in the present circumstances to set out substantially
the same standard and criteria announced in Riley.

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harm,3 we agree that the record demonstrates no triable

issue over whether such knowledge or notice may have occurred

only after November 12, 1990 (the relevant date, three years

before the complaint was filed). The record contains a

plethora of undisputed evidence showing plaintiff's early

awareness of distress resulting from her father's abuse. She

filed, withdrew, and later refiled (in October 1990) criminal

charges against her father. She manifested from 1984 onward

her strong desire to escape the repeated abuse (and,

subsequently, to help her sister escape the risk of abuse).

Her own suicidal inclinations in 1984 are linked in her

affidavit with going to the police in that year with her

mother and sisters to protest her father's conduct. Her

psychologist, Dr. Wayment, opined that plaintiff could

3. Appellant concedes, as the magistrate judge found, that
there is no dispute over the first prong of the discovery
rule, i.e., that plaintiff knew she had been harmed prior to

November 1990. The sole issue is whether, given Dr.
Wayment's and plaintiff's affidavits relating to her
dissociation -- rendering her unable causally to relate her
psychological injuries to her father's conduct -- plaintiff
or a reasonable person who had been subject to her experience
would have lacked sufficient knowledge until after November
12, 1990 that her father caused her injuries. We believe, in
this regard, that the magistrate judge misspoke in resting
her prong one finding solely on plaintiff's remembrance
before then of "the incestuous acts." Flanagan, 897 F. Supp.

at 642. The relevant harm referred to in Riley is not simply

the abusive conduct itself but the psychological injury
therefrom. See Riley, 565 N.E.2d at 786. Here, appellant

considered suicide and manifested other forms of distress
prior to November 1990, making it clear that she was aware of
the psychological harm prior to then so as to satisfy prong
one of the discovery rule.

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intellectually understand the relationship between her

father's incest and her feelings, although she did not fully

associate emotionally the incestuous conduct with her

feelings until the fall of 1993.

Riley held that even though emotional and

psychological barriers may prevent a plaintiff from taking

action against an abusive defendant, a plaintiff's knowledge

of a causal association between the abuse and the resulting

psychological harm suffices to trigger the running of the

statute of limitations. Riley, 565 N.E.2d at 787; see also

Phinney, 654 N.E.2d at 81-82. We think the magistrate judge

did not err in finding no triable issue here, and are

constrained to agree with her conclusion in this sad case

that "[i]n the case at bar, although plaintiff did not fully

experience the extent of the damage inflicted by her father,

she nevertheless realized that her father was the likely

cause of her injuries prior to November 12, 1990." Flanagan,

897 F. Supp. at 643.

There is no merit in plaintiff's second argument

that the district court inadequately performed its review

duties because it simply noted its approval on the magistrate

judge's report itself. Plaintiff cites no caselaw or

particular fact supporting her claim and we discern none.

Affirmed.

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