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In Cisko v. Diocese of Steubenville, 38 Fla. L. Weekly D1902a (Fla. 3d DCA September 4, 2013), the 3d DCA affirmed a summary judgment entered in favor of the Diocese because the delayed discovery doctrine did not toll the statute of limitations on the negligence claims, which arose out of alleged abuse that took place in 1966 and 1967.

In May 2009, the appellants sued the Diocese of Steubenville for negligence related to physical and sexual abuse they allegedly suffered between 1966 and 1967 by two priests under the Diocese's supervision. The complaint alleged that the events produced traumatic amnesia that blocked the appellants' memory of the abuse until May 2009.

The Diocese moved for summary judgment claiming the four year statute of limitations barred the action. The appellants argued that the action was timely under the delayed discovery doctrine as applied in Hearndon v. Graham, 767 So. 2d 1179 (Fla. 2000). In Hearndon, the Florida Supreme Court had allowed an action to stand under the specific facts of that case, which involved an intentional tort claim against a child's stepfather for sexual abuse suffered by the child.

In the instant case, the trial court granted the Diocese's motion for summary judgment. The 3d DCA affirmed, holding that the delayed discovery doctrine did not apply in that there was no allegation of intentional action. It ruled that the Florida Supreme Court intended to limit Hearndon to intentional tort actions against the perpetrator of childhood sexual abuse.

 

 

This summary was prepared by David Kuhn of our firm.


David Kuhn

 

 

38 Fla. L. Weekly D1902a

 

Torts -- Negligence -- Limitation of actions -- Delayed discovery doctrine -- Delayed discovery doctrine does not apply to a negligence action -- Trial court properly found that delayed discovery doctrine did not apply to negligence action against Diocese related to sexual abuse by priests under Diocese's supervision and that action was barred by statute of limitations

JOHN CISKO, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF FREDERICK ANTHONY CISKO, and JOHN DOE, Appellants, vs. DIOCESE OF STEUBENVILLE, Appellee. 3rd District. Case No. 3D12-1496. L.T. Case No. 09-35639. Opinion filed September 4, 2013. An Appeal from the Circuit Court for Miami-Dade County, Lester Langer, Judge. Counsel: Herman, Mermelstein & Horowitz and Jeff Herman, for appellants. Gaebe, Mullen, Antonelli & DiMatteo and Elaine D. Walter, Michael A. Mullen and Joseph M. Winsby, for appellee.

(Before SUAREZ, ROTHENBERG and SALTER, JJ.)

(SUAREZ, Judge.) John Cisko, as personal representative of the Estate of Frederick Anthony Cisko, and John Doe appeal the entry of final summary judgment based on the determination that the statute of limitations bars their negligence claim against the Diocese of Steubenville. We affirm.

In May 2009, the appellants sued the Diocese for negligence related to physical and sexual abuse they allegedly suffered between 1966 and 1967 by two priests under the Diocese's supervision. The complaint alleges the events produced traumatic amnesia that blocked their memory of the abuse until May 2005. The Diocese moved for summary judgment, claiming the four-year statute of limitations barred the action. See § 95.11(3)(a), Fla. Stat. (2006). The appellants argued the action was permissible under the delayed discovery doctrine as applied in Hearndon v. Graham, 767 So. 2d 1179 (Fla. 2000). The trial court concluded Hearndon did not apply to a negligence action and entered summary judgment. It reasoned the Supreme Court intended to limit Hearndon to intentional tort actions against the perpetrator of childhood sexual abuse. We agree and affirm.

A plain reading of Hearndon makes clear the holding is limited to its specific historical and procedural facts. The plaintiff in Hearndon brought an intentional tort action against her stepfather for sexual abuse she suffered by him as a child. Id. at 1181. She alleged the trauma caused her to suppress her memory of the events for many years, only recalling them later as an adult. Id. The trial court and the district court of appeal determined the statute of limitations barred her action. Id. at 1181-82. The Florida Supreme Court, however, allowed the action to stand under the delayed discovery doctrine based on the plaintiff's allegations of traumatic amnesia. Id. at 1186. The opinion strongly suggests the holding hinges not only on these specific allegations but also on the specific cause of action: a suit for intentional tort against the perpetrator. See id. at 1186 ("We therefore hold that the delayed discovery doctrine applies to the accrual of the instant cause of action based on a claim of childhood sexual abuse accompanied by traumatic amnesia . . . ." (emphasis added)).

This reading finds further support in the Court's statements in Davis v. Monahan, 832 So. 2d 708 (Fla. 2002). There, the Court explained the narrow application of Hearndon and stated it was limited to its specific facts. It described Hearndon as "where we applied the delayed discovery doctrine to intentional torts arising from childhood sexual abuse of the plaintiff." Id. at 709. The Court further explained its considerations in reaching that holding:

While we applied the delayed discovery doctrine to causes of action1 arising out of childhood sexual abuse and repressed memory in Hearndon, we did so only after considering the unique and sinister nature of childhood sexual abuse . . . . We also considered the Legislature's endorsement in amending section 95.11(7), Florida Statutes (1999), to include intentional torts based on abuse . . . .

Davis, 832 So. 2d at 712.

Here, as in Davis, there is no statutory endorsement. In fact, in more than ten years since enacting section 95.11(7), the legislature has not extended the limitations period to causes of action other than intentional torts. Our holding today also accords with the Fourth District Court of Appeal's interpretation of section 95.11(7) and Hearndon. See Doe v. Sinrod, 90 So. 3d 852, 854 (Fla. 4th DCA 2012) (declining to apply tolling provisions under section 95.11(7), Fla. Stat. (2011), to negligence action against school board based on alleged sexual abuse by school board employee). Although the appellants make compelling arguments, we conclude the requested relief is a matter for legislative consideration.

Affirmed.
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1. We note that the Court refers to the plural "causes of action" although Hearndon involved a single allegation of intentional tort. See Hearndon, 767 So. 2d at 1181 (discussing the trial court's determination that "the alleged cause of action" was time-barred). In light of the Court's reiterations that Hearndon is limited to its specific facts, we decline to interpret this statement as suggesting otherwise.








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