The opinion of the court was delivered by: Karen E. Schreier Chief Judge
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT
Defendant, The Diocese of Rapid City, moves for summary judgment on the basis that the statute of limitations has expired. Plaintiffs, Pamela Baye and Sylvan Baye, resist the motion.
The facts viewed in the light most favorable to plaintiffs are: Pamela suffered severe verbal, physical, and sexual abuse from her parents and numerous other individuals throughout her entire childhood. As a result of the horrific circumstances surrounding her upbringing, Pamela developed a dissociative identity disorder.*fn1 She also suffers from depression, major anxiety, anorexia, and posttraumatic stress disorder.
As a young adult, Pamela went to various clinics and counselors for help. In 1987, she went to a parish in Philip, South Dakota, and sought counseling from Father Scadron. During one of the meetings, Father Scadron, who was 67 years old at the time, attacked and raped Pamela. After the assault, Father Scadron told Pamela that she and her children would go to hell if she ever told anyone about what had happened. Pamela was 23 years old at the time of the assault.
Pamela did not remember the assault by Father Scadron. Essentially, she was in the church one moment, then she was at home the next, with no idea how she got there. Neither Pamela, nor anyone else, suspected that Father Scadron had done anything inappropriate with Pamela. Father Scadron died on July 4, 2002. Then, on June 11 or 12, 2006, Pamela recovered the memory of the sexual assault during the course of her therapy. On August 9, 2007, plaintiffs filed this suit against defendant.*fn2
Defendant argues that plaintiffs' claims are barred by the statute of limitations because the causes of action accrued approximately 19 years prior to the filing of the complaint. Plaintiffs argue that the causes of action did not accrue until Pamela became aware of the sexual assault on June 11 or 12, 2006, or that the statutes of limitations were otherwise tolled.*fn3
In addressing a motion for summary judgment, the evidence must be viewed "most favorably to the non-moving party and the burden of proof is on the moving party to show that there are no genuine issues of material fact." One Star v. Sisters of St. Francis, Denver, Colo., 752 N.W.2d 668, 674 (S.D. 2008) (citing Wulf v. Senst, 669 N.W.2d 135, 141 (S.D. 2003)). "When faced with a summary judgment motion where the defendant asserts the statute of limitations as a bar to the action and presumptively establishes the defense by showing the case was brought beyond the statutory period, the burden shifts to the plaintiff to establish the existence of material facts in avoidance of the statute of limitations." Id. at 675 (internal quotations and citations omitted). "Generally a statute of limitations question is left for the jury; however, deciding what constitutes accrual of a cause of action is a question of law[.]" Id. (internal quotations and citations omitted).
The applicable statutes of limitations in this case are determined by South Dakota law. See Larsen v. Mayo Med. Ctr., 218 F.3d 863, 866 (8th Cir. 2000). The assault and battery claim is governed by SDCL 15-2-15.*fn4
The remaining claims are governed by SDCL 15-2-14.*fn5
I. Whether a Cause of Action Accrues Under SDCL 15-2-14 and 15-2-15 When the Tort Occurs or When the Tort is Discovered
Plaintiffs contend that their causes of action did not accrue until plaintiffs had an awareness that they suffered an injury or that defendant committed a legal wrong that resulted in harm to plaintiffs. In essence, plaintiffs are contending that their causes of action did not accrue until Pamela "discovered" she had been raped by Father Scadron.
The South Dakota Supreme Court and Legislature have rejected the discovery rule absent fraudulent concealment or specific statutory language. Shippen v. Parrott, 506 N.W.2d 82, 85-86 (S.D. 1993), abrogated by Jensen v. Kasik, 758 N.W.2d 87, 89 (S.D. 2008). See also Kurylas, Inc. v. Bradsky, 452 N.W.2d 111, 114 (S.D. 1990); Alberts v. Giebink, 299 N.W.2d 454, 455 (S.D. 1980). In Shippen, the South Dakota Supreme Court addressed whether "the trial court err[ed] in applying the discovery rule in tolling the statute of limitations[.]" 506 N.W.2d at 84. The court found that the plaintiff's claims were not tolled because of his " 'repression or post-traumatic stress disorder[.]' " Id. at 86. The court rejected the argument "that an applicable statute of limitations does not begin to run until the harm is discovered rather than when the harm occurred." Id. at 85. Thus, under SDCL 15-2-14 and SDCL 15-2-15, a cause of action for a personal injury claim accrues when the offense occurred, not when the offense is discovered. See id. at 85-86. See also Jacobson v. Leisinger, 746 N.W.2d 739, 746 (S.D. 2008) (stating that under SDCL 15-2-15, "[g]enerally the accrual date for a defamation action begins on the publication of the defamatory act" (citations ...