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Teresa Bernie v. Blue Cloud Abbey; Sisters of the Blessed Sacrament; and

September 5, 2012

TERESA BERNIE, PLAINTIFF AND APPELLANT,
v.
BLUE CLOUD ABBEY; SISTERS OF THE BLESSED SACRAMENT; AND OBLATE SISTERS OF THE BLESSED SACRAMENT, DEFENDANTS AND APPELLEES, AND CATHOLIC DIOCESE OF SIOUX FALLS, DOE PRIEST; DOE PERPETRATOR 1; DOE PERPETRATOR 2; DOE PERPETRATOR 3; AND DOE PERPETRATOR 4, DEFENDANTS. GALEN DRAPEAU, PLAINTIFF AND APPELLANT,
v.
BLUE CLOUD ABBEY; SISTERS OF THE BLESSED SACRAMENT; AND OBLATE SISTERS OF THE BLESSED SACRAMENT, DEFENDANTS AND APPELLEES, AND CATHOLIC DIOCESE OF SIOUX FALLS, DOE PRIEST; DOE PERPETRATOR 1; DOE PERPETRATOR 2; DOE PERPETRATOR 3; AND DOE PERPETRATOR 4, DEFENDANTS. L.C.A.; J.C.B.; L.J.C.; G.D.; B.C.D.; R.B.; M.L.B.; F.B.C.; Y.P.C., PLAINTIFFS AND APPELLANTS,
v.
BLUE CLOUD ABBEY; SISTERS OF THE BLESSED SACRAMENT; AND DEFENDANT AND APPELLEE, OBLATE SISTERS OF THE BLESSED SACRAMENT, DEFENDANTS AND APPELLEES, AND CATHOLIC DIOCESE OF SIOUX FALLS, DOE PRIEST; DOE PERPETRATOR 1; DOE PERPETRATOR 2; DOE PERPETRATOR 3; AND DOE PERPETRATOR 4, DEFENDANTS. MARY MCGHEE DOG SOLDIER, PLAINTIFF AND APPELLANT,
v.
BLUE CLOUD ABBEY, AND CATHOLIC DIOCESE OF SIOUX FALLS, DEFENDANT. ALFRED EAGLE DEER, SR.,
v.
OBLATE SISTERS OF THE BLESSED SACRAMENT, AND CATHOLIC DIOCESE OF SIOUX FALLS, RITA FAYE FLOOD,
v.
BLUE CLOUD ABBEY, AND CATHOLIC DIOCESE OF SIOUX FALLS, GROVER CURTIS MALLORY,
v.
SISTERS OF THE BLESSED SACRAMENT, AND CATHOLIC DIOCESE OF SIOUX FALLS, RODERICA ROUSE,
v.
BLUE CLOUD ABBEY, AND CATHOLIC DIOCESE OF SIOUX FALLS, PLAINTIFF AND APPELLANT, DEFENDANT AND APPELLEE, DEFENDANT. PLAINTIFF AND APPELLANT, DEFENDANT AND APPELLEE, DEFENDANT. PLAINTIFF AND APPELLANT, DEFENDANT AND APPELLEE, DEFENDANT. PLAINTIFF AND APPELLANT, DEFENDANT AND APPELLEE, DEFENDANT. LOREN RAYMOND ZEPHIER,
v.
BLUE CLOUD ABBEY, AND CATHOLIC DIOCESE OF SIOUX FALLS, ISADORE M. ZEPHIER,
v.
BLUE CLOUD ABBEY, AND CATHOLIC DIOCESE OF SIOUX FALLS, PLAINTIFF AND APPELLANT, DEFENDANT AND APPELLEE, DEFENDANT. PLAINTIFF AND APPELLANT, DEFENDANT AND APPELLEE, DEFENDANT.



APPEAL FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT MINNEHAHA COUNTY, SOUTH DAKOTA THE HONORABLE BRADLEY G. ZELL Judge

The opinion of the court was delivered by: Zinter, Justice

ARGUED ON MAY 22, 2012

[¶1.] The plaintiffs and appellants are former students who attended an elementary boarding school. They alleged that they were sexually abused while attending the school more than thirty-five years ago. The students commenced suits against some alleged perpetrators and entity defendants Blue Cloud Abbey, the Sisters of the Blessed Sacrament, the Oblate Sisters of the Blessed Sacrament, and the Catholic Diocese of Sioux Falls. The entity defendants were alleged to have owned, operated, or controlled the school when the abuse allegedly occurred. After a prior appeal to this Court,*fn1 the circuit court granted summary judgment both for and against the entity defendants on a large number of substantive and procedural issues. The circuit court later granted a motion to dismiss all remaining claims against the three entity defendants who are the appellees in these appeals.*fn2 Because it is dispositive, we only address one issue raised by the entity defendants by notice of review. We conclude that an extended statute of limitations for childhood sexual abuse did not apply in these cases because the entity defendants were not perpetrators who were alleged to have engaged in intentional, criminal conduct. Because these lawsuits were filed more than twenty years after the applicable statute of limitations expired, we affirm the circuit court's dismissal.*fn3

Facts and Procedural History

[¶2.] All plaintiffs in these consolidated appeals claim to be victims of childhood sexual abuse committed prior to 1975 when they were students at St. Paul's School, which is located in Marty, South Dakota. Between 2004 and 2008, the students commenced suits against some alleged perpetrators and some entity defendants.*fn4 The complaints asserted liability against the entity defendants on the following theories: (1) negligent hiring, retaining, and supervising persons who were known or should have been known to be sex abusers; (2) breach of fiduciary duty in failing to protect the students from abuse; and (3) vicarious liability under the doctrine of respondeat superior. The circuit court ultimately dismissed on a procedural ground. The court relied on a 2010 enactment that barred certain claims against entity defendants. The 2010 enactment was added to SDCL 26-10-25, a statute of limitations extending the time to commence certain actions for childhood sexual abuse. The court concluded that the 2010 amendment applied retroactively to bar the sexual abuse claims against the entity defendants. We address a predicate question raised by the entity defendants on notice of review: whether the extended statute of limitations even applies to causes of action against nonperpetrators of childhood sexual abuse.*fn5

[¶3.] SDCL 15-2-14 provides that except when a different limitation is prescribed by statute, actions for personal injury "can be commenced only within three years after the cause of action shall have accrued." At the time the students commenced these actions, SDCL 26-10-25 extended the time to commence certain actions involving childhood sexual abuse. The extension gave victims time to discover the causal relationship between the sexual abuse and the resulting injury. SDCL 26-10-25 (1991) provided:

Any civil action based on intentional conduct brought by any person for recovery of damages for injury suffered as a result of childhood sexual abuse shall be commenced within three years of the act alleged to have caused the injury or condition, or three years of the time the victim discovered or reasonably should have discovered that the injury or condition was caused by the act, whichever period expires later.

[¶4.] The students argue that they are entitled to the extension in SDCL 26- 10-25. See One Star v. Sisters of St. Francis, 2008 S.D. 55, ¶ 13, 752 N.W.2d 668, 675. The entity defendants respond that SDCL 26-10-25 does not apply to non- perpetrating defendants who are sued on theories of negligence or other causes of action not based on intentional, criminal conduct. The entity defendants point out that the statute applies to actions that are "based on intentional conduct" involving "childhood sexual abuse." They also point out that childhood sexual abuse is specifically defined as sexual abuse that is proscribed by the criminal code. See SDCL 26-10-29. The entity defendants contend that the circuit court erred in allowing the students to utilize SDCL 26-10-25 because the entity defendants were not alleged to have engaged in "intentional acts" of "childhood sexual abuse" that was proscribed by the criminal code.

Decision

[¶5.] The construction and application of statutes of limitation present legal questions that we review de novo. Jensen v. Kasik, 2008 S.D. 113, ¶ 4, 758 N.W.2d 87, 88. In reviewing summary judgment, "affirmance is suitable if any legal basis exists to support the court's decision." Horne v. Crozier, 1997 S.D. 65, ¶ 5, 565

N.W.2d 50, 52.

[¶6.] SDCL 26-10-25 applies to "[a]ny civil action based on intentional conduct brought by any person for recovery of damages for injury suffered as a result of childhood sexual abuse." (Emphasis added.) For purposes of this statute, childhood sexual abuse is defined in SDCL 26-10-29 as any act committed "by the defendant against the complainant . . . [and] which act would have constituted a felony." (Emphasis added.) The question is whether, in light of these emphasized limitations, SDCL 26-10-25 applies to claims against non-perpetrating defendants who are sued for negligence or on other theories of liability not involving intentional, criminal conduct. Courts that have considered this question have reached different conclusions.

[¶7.] We are persuaded by the courts that have relied on the plain and ordinary meaning of identical or similar language limiting application of such statutes to claims based on intentional conduct constituting a criminal offense. For example, the Colorado Court of Appeals considered the "plain language of the text" that limited the Colorado statute to actions "based on . . . a sexual offense against a child." Sandoval v. Archdiocese of Denver, 8 P.3d 598, 600-01 (Colo. App. 2000). The court concluded that this limiting language, "when viewed within the context of the entire statute," restricted application of the statute to claims brought against perpetrators and did not include related claims brought against third parties. Id. at 602.

[ΒΆ8.] The Colorado court acknowledged the view of other courts that the language "based on" can be read to allow a victim's claims if the claims simply arise from "the factual circumstances of the sexual offense." Id. at 601. The court specifically acknowledged Werre v. David, 913 P.2d 625 (Mont. 1996) and C.J.C. v. Corp. of Catholic Bishop, 985 P.2d 262 (Wash. 1999) (both applying the "based on" intentional conduct language to negligence claims against non-perpetrators because the perpetrator's sexual act was the starting point or foundation for injury that would not have occurred absent the abuse). Sandoval, 8 P.3d at 601. The Colorado court also acknowledged Almonte v. New York Medical College, 851 F. Supp. 34 (D. Conn. 1994) (applying an extended statute of limitations to claims against non- perpetrators on the theory that public policy required the extension). Sandoval, 8 P.3d at 601. But the Colorado court concluded that when the limiting language was "viewed within the context of the entire statute, . . . the term 'based on' encompasses only those civil claims brought against the perpetrator arising from his or her sexual assault or offense." Id. ...


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