The Wrong for Which There Is No Legal Remedy

Partner/Mediator Kimberly Sands

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.



Numerous courts around the country have applied the delayed discovery doctrine to cases alleging childhood sexual abuse where the emotional response resulting from childhood molestation, “often coupled with authoritative adult demands and threats for secrecy,” may lead a child to deny or suppress such abuse from his or her consciousness.  See Hearndon v. Graham, 767 So. 2d 1179 (Fla. 2000).

In 1992, the Florida legislature amended the limitation period applicable to intentional torts based on abuse. The relevant provision currently provides:

 95.11(7) FOR INTENTIONAL TORTS BASED ON ABUSE.—An action founded on alleged abuse, as defined in s. 39.01, s. 415.102, or s. 984.03, or incest, as defined in s. 826.04, may be commenced at any time within 7 years after the age of majority, or within 4 years after the injured person leaves the dependency of the abuser, or within 4 years from the time of discovery by the injured party of both the injury and the causal relationship between the injury and the abuse, whichever occurs later. 

Several courts have held that this section applies only to intentional tort claims against the perpetrator of the sexual abuse and not claims against an institution based on respondent superior or other theories of liability in which an individual or institution can be held  liable for the intentional criminal acts of another.  

As a result, plaintiffs have argued that the language of section 95.11(9), essentially eliminating any statutory limitation periods for sexual battery victims under the age of 16, is broad enough to include a cause of action against a non-perpetrator. Section 95.11(9) provides as follows:

95.11(9) SEXUAL BATTERY OFFENSES ON VICTIMS UNDER AGE 16.—An action related to an act constituting a violation of s794.011 (sexual battery) involving a victim who was under the age of 16 at the time of the act may be commenced at any time. This subsection applies to any such action other than one which would have been time barred on or before July 1, 2010.

Earlier this year, two courts, the 3rd DCA in Firestone v. Temple Beth Sholom, 183 So. 3d 1225 (Fla. 3d DCA 2016,) and the 4th DCA in W.D. v. Archdiocese of Miami, 41 Fla. L. Weekly D1296 (Fla. 4th DCA June 1, 2016), declined to answer this question, holding instead that the claims before these courts were time barred prior to July 1, 2010, and therefore did not survive the limitation period set for in sections 95.11(3)(a) (negligence), (o) (emotional distress), and (p) (respondeat superior).

More on the Court’s decision in W.D. v. Archdiocese of Miami, in PART TWO 

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