APPEAL FROM THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT BRULE COUNTY, SOUTH DAKOTA HONORABLE BRUCE V. ANDERSON Judge
The opinion of the court was delivered by: Meierhenry, Retired Justice
[¶1.] The circuit court determined that the plaintiff's action for childhood sexual abuse was barred by the three year statute of limitations. We affirm.
[¶2.] The alleged sexual abuse against the plaintiff, Roger Rodriguez,*fn1 while he was a student at St. Joseph's Indian School in Chamberlain, South Dakota, occurred in the 1970's when Rodriguez was between seven and ten years old. The defendants are Brother Matthew Miles and John Donadio (the alleged perpetrators) and the Congregation of the Priests of the Sacred Heart, Inc. (the entity that owned and operated St. Joseph's).
[¶3.] The South Dakota Legislature permits a person who was sexually abused as a child to sue within three years of the abuse or three years from the time the person "discovered or reasonably should have discovered that [his ] injury or condition was caused by the act ." SDCL 26-10-25*fn2 (emphasis added). The defendants asserted that this statute barred Rodriguez's claims because Rodriguez discovered or reasonably should have discovered that the childhood sexual abuse caused him injury more than three years before his lawsuit was filed. The defendants point out that Rodriguez admitted in a deposition that he knew he had been sexually abused and that, over the years, the memory of it made him angry and caused him to use alcohol and drugs and lash out at others. He also admitted that it had affected his work and family life and had caused him indescribable pain and anger. Based on his deposition testimony, the defendants moved for summary judgment.
[¶4.] In response, Rodriguez submitted an affidavit to clarify his deposition testimony. His affidavit indicated that he only became aware of the effects of the childhood sexual abuse after a psychologist, Dr. Frank Dame, explained them to him in 2005. Rodriguez recognized that he always had painful memories of the abuse and that he became "angry when [he] thought about being abused, . . . and lashed out, or drank or used drugs." He clarified, however, that when the defendants' lawyer asked him "if [he] knew at the time 'that this abuse was causing [Rodriguez] these problems,' it was those behaviors [(lashing out, drinking, and drug use)] [he] was referring to." Rodriguez claimed that he considered his behaviors normal and "an everyday part of life in Lower Brule [Indian Reservation]." He further claimed that he did not understand the link between the behaviors and the sexual abuse.
[¶5.] Dr. Dame's opinion, presented by affidavit, was that Rodriguez "was unable to and did not associate his anger, depression, resistance to authority, sexual dysfunction, drug and alcohol abuse, and violent behavior patterns with [the childhood sexual abuse]." Dr. Dame indicated that Rodriguez recognized that he got angry and used drugs and alcohol as coping mechanisms when he thought about the childhood sexual abuse but that Rodriguez "did not connect the injuries and conditions he suffered from with the [sexual abuse]" until the summer of 2005.
[¶6.] Because this issue comes to us from an order granting summary judgment, we direct our review to "whether genuine issues of material fact exist and whether the law was correctly applied." Zephier v. Catholic Diocese of Sioux Falls , 2008 S.D. 56, ¶ 6, 752 N.W.2d 658, 662 (quoting Bordeaux v. Shannon Cnty. Sch., 2005 S.D. 117, ¶ 11, 707 N.W.2d 123, 126). We view the evidence in the light most favorable to the non-moving party, Rodriguez. Id. (citing Wulf v. Senst, 2003 S.D. 105, ¶ 17, 669 N.W.2d 135, 141). "Entry of summary judgment is mandated against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. (citing Celotex Corp. v. Catrett , 477 U.S. 317, 322-23, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265, 273 (1986)). "[T]hose resisting summary judgment must show that they will be able to place sufficient evidence in the record at trial to support findings on all the elements on which they have the burden of proof." Id. ¶ 6 n.3 (citing Bordeaux , 2005 S.D. 117, ¶ 14, 707 N.W.2d at 126 (quoting Chem-Age Indus., Inc. v. Glover, 2002 S.D. 122, ¶ 18, 652 N.W.2d 756, 765 (citation omitted))).
[¶7.] The statute of limitations in "SDCL 26-10-25 is an affirmative defense, and the burden of proof to establish affirmative defenses is on the party who seeks to rely on it." Id. ¶ 9 (citing Clancy v. Callan, 90 S.D. 115, 118, 238 N.W.2d 295, 297 (1976) (citing Lang v. Burns, 77 S.D. 626, 97 N.W.2d 863, 865 (1959))). "In summary judgment proceedings, where the defendant asserts the statute of limitations as a bar to the action, and presumptively establishes the defense by showing the case was instituted beyond the statutory period, the burden [of production] then shifts to the plaintiff to establish the existence of material facts in avoidance of the statute of limitations[.]" Id. (quoting Conway v. Conway, 487 N.W.2d 21, 23 (S.D. 1992)). "Generally, a statute of limitations question is left for the jury; however, '[d]eciding what constitutes accrual of a cause of action' is a question of law and reviewed de novo." One Star v. St. Francis Mission, 2008 S.D. 55, ¶ 12, 752 N.W.2d 668, 675 (quoting Peterson v. Hohm , 2000 S.D. 27, ¶¶ 7-8, 607 N.W.2d 8, 10-11 (citations omitted)).
[¶8.] It is undisputed that Rodriguez knew of the alleged abuse more than three years before he filed suit. It is also undisputed that he got angry and depressed, exhibited aggressive behavior, and used drugs and alcohol when he thought about the abuse. Dr. Dame labeled Rodriguez's reactions as coping mechanisms and concluded that Rodriguez had not connected the sexual abuse with his reactions, i.e. injuries, until 2005 during counseling.
[¶9.] Dr. Dame's affidavit may support Rodriguez's claim that he did not have actual notice more than three years before filing his action. But Dr. Dame's affidavit leaves open whether Rodriguez had inquiry notice. An action "accrues and the plaintiff is put on inquiry notice when facts come to light that would prompt a reasonably prudent person to seek out information regarding his or her injury or condition and its cause." One Star , 2008 S.D. 55, ¶ 18, 752 N.W.2d at 677. This Court explained inquiry notice in Zephier as follows:
[O]ne having actual notice of circumstances sufficient to put a prudent person on inquiry about a particular fact, and who omits to make such inquiry with reasonable diligence, is deemed to have constructive notice of the fact itself sufficient to start the running of the statute of limitations. Limitations periods will not abide indefinitely while those aggrieved discover all their damages. Statutes of limitations begin to run when plaintiffs first become aware of facts prompting a reasonably prudent person to seek information about the problem and its cause. Consequently, as we noted in One Star,
SDCL 26-10-25 accrues when the plaintiff is put on inquiry notice of facts that would prompt a reasonably prudent person to seek out information regarding his or her injury or condition and its cause.
2008 S.D. 56, ¶ 14, 752 N.W.2d at 665 (citations and quotations omitted). Rodriguez commenced his action in November 2007. Even assuming that Rodriguez did not discover the connection between the sexual abuse and his injuries or condition until 2005, his action may still be barred if he was put on inquiry notice more than three years before he commenced his action. Therefore the question is whether Rodriguez became aware of facts that would have prompted "a reasonably prudent person to seek information about the ...