Part 2: The Wrong for Which There Is No Legal Remedy

Kimberly Sands, Principal and Mediator

Delayed Discovery Doctrine applies only to intentional tort claims against the perpetrator of the sexual abuse.

W.D. v. Archdiocese of Miami, 41 Fla. L. Weekly D1296 (Fla. 4th DCA June 1, 2016).  

Kimberly Sands, a partner with Upchurch Watson White & Max, has been a civil litigator and has been involved with difficult and complex disputes as litigator or mediator for over 30 years. To schedule a mediation with Kimberly, please call her case manager, Cathy McCleary, at (800) 863-1462, or visit our online calendar.

PART TWO:

The allegations typical of institutional child sexual assault cases are undeniably heartbreaking. In W.D. v Archdiocese, the plaintiff alleged that beginning at approximately 6 years of age, three priests sexually abused him over a period of time while he attended counseling at a school sponsored by the defendant. He also alleged that the three priests threatened to harm him and his mother if he told anyone about the incidents. These threats silenced the plaintiff, prevented a report of the abuse, and caused him to repress the traumatic events.

Despite this, his mother became concerned when she saw pictures the plaintiff drew of the events.  His mother notified the defendant about the plaintiff’s behavior, but the defendant took no action other than recommending one of its therapists. It’s unclear whether the plaintiff’s mother took the plaintiff to the therapist or whether she knew the source of her son’s disturbing pictures. The plaintiff alleged however, that the defendant knew of the sexual abuse, continued to give the priests access to him, and created a plan to protect the priests and themselves from scandal and liability.

Among other things, the plaintiff alleged that in 1986 one of the priests bought the plaintiff and his mother a house after learning about the mother’s concerns. He obtained a loan from the church to purchase the house and made the mortgage payments until 1991 when the plaintiff’s mother deeded the house back to the priest. In 2013, the plaintiff began to recall the prior abuse after seeing a picture of himself as a seven-year-old. He had flashbacks and his mother told him of physical manifestations of the abuse he exhibited as a child that had caused her concern.

Because of these allegations, the plaintiff also argued that his claims were timely under the doctrine of equitable estoppel. In rejecting this argument the court reasoned that, in order to find that the defendant was equitably estopped from asserting a limitation defense, the plaintiff would had to have been aware of his right to sue, and then fail to file because of the defendant’s conduct. In somewhat of a Catch-22 for the plaintiff the court concluded that this is contrary to his asserted position that he had no memory of the alleged abuse.

As a consequence, there remains uncertainty. This issue could be decided differently by another district or may be appealed to Florida’s Supreme Court. Assuming these opinions stand, there are survivors whose claims are forever barred despite the relief offered others under section 95.11(9).

This has been a particularly difficult subject for religious institutions. Some believe the relationship between the church and its members fosters a coercive environment in which no one protects the interests of the child. They have therefore advocated that in such situations religious institutions should waive any limitation defense and assume responsibility for the harm that results from its failure to protect the child. Professional neutrals have been charged with distributing funds available created by circumstances outside traditional single plaintiff litigation models. Solutions exist, but it may take a resolve to address the harm caused by these situations outside traditional legal models.

To read Part 1, please click here.


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