Accrual of six-year statute of limitations applicable to childhood sexual abuse was issue of fact for jury.

Clarke v. Abate, 2013 VT 52 (09-Aug-2013)

REIBER, C.J.  In this civil action alleging sexual assault and battery and intentional or reckless infliction of emotional distress by a medical doctor during the course of his treatment of a high school female athlete, plaintiff appeals the superior court’s grant of summary judgment to defendant based on the six-year statute of limitations applicable to childhood sexual abuse. The court’s determination that the limitations period had run as a matter of law before plaintiff filed her lawsuit relied primarily on plaintiff’s statements to police and her deposition testimony concerning her awareness of defendant’s wrongful conduct at the time of the alleged assaults. We conclude that the court erred by determining the limitations accrual date as a matter of law rather than allowing the jury to weigh inferences from the factual record regarding plaintiff’s state of mind and knowledge during the relevant period of time. Accordingly, we reverse the judgment and remand the matter for further proceedings consistent with this opinion.

The applicable statute of limitations, 12 V.S.A. § 522(a), states a civil action for recovery of damages for injury suffered as a result of childhood sexual abuse shall be commenced within six years of the act alleged to have caused the injury or condition, or six years of the time the victim discovered that the injury or condition was caused by that act, whichever period expires later.

Plaintiff's treatment with defendant ended in August 2002 Plaintiff filed suit on June 4, 2009. The trial court granted summary judgment relying primarily on statements made by plaintiff to police in 2007 and her 2011 deposition testimony concerning her awareness of defendant's conduct at the time of the alleged assaults. The court concluded as a matter of law that plaintiff's cause of action began to accrue when she reached the age of majority because her own statements indicate that she knew or should have known of the assaultive nature of defendant's conduct at the time it occurred.

A court may determine the accrual-date issue only "when there is no legally sufficient evidentiary basis for a reasonable jury to find for the nonmoving party on that issue." Although plaintiff in a statement to investigators, indicated she "definitely" felt something was wrong during the examinations, she also made statements indicating that she was not sure if her concerns were valid and did not receive affirmation of the validity of those concerns from family members. Given plaintiff's at-times equivocating and conflicting statements to the authorities concerning her knowledge and awareness of any wrongful conduct on defendant's part, it was the jury's prerogative to make any inferences from those statements and determine at what point plaintiff knew or should have known that defendant's conduct was assaultive rather than medical in nature.

Given the imbalances of the roles between plaintiff and defendant, as well as the ambiguities and inconsistencies in the statements relied upon by the trial court with respect to the extent of plaintiff's knowledge and understanding of whether the purported treatment was in fact childhood sexual abuse, the trial court erred in dismissing plaintiff's suit as a matter of law.

Parental rights. State failed to carry its burden of proof of showing child abuse -- even though injuries to children were no accident -- because of no “non-medical” evidence of abuse.

In re M.L. & Z.L. (2009-089)(29-Jan-2010) 2010 VT 5 (Burgess, J. ) (Reiber, C.J., dissenting.)

The State of Vermont appeals from the family court’s dismissal of its petition to declare juveniles M.L. and Z.L. as children in need of care or supervision (CHINS). Children join the State’s appeal. The State asserts that the family court applied an improperly high standard of proof and relied on irrelevant evidence in reaching its conclusion. We affirm.

Following a two-day hearing, the family court, Judge Howard VanBenthuysen presiding, denied mother’s motion to return M. L. to her custody. The court found that the evidence clearly and convincingly established that Z.L.’s acute head injuries were caused when he was struck in the head by enormous force, such as the force generated when an infant is swung by his feet and its head is struck against an object The court recounted that Z.L. had suffered not one but two life-threatening skull fractures and grossly traumatic brain injuries within a two-to-four-week period. The latter incident nearly caused his death, and it required two extensive brain surgeries. The injuries caused the clinical death of nearly half of his brain. This latter incident alone, the court concluded, was sufficient for the court to be concerned about M.L.’s safety. It was so horrific, so traumatic, and required so much force, and it could only have been inflicted by an adult. It was therefore reasonable to conclude that M.L. could be in danger if returned to parents’ custody.

The family court, Judge Mark Keller presiding, subsequently held a nine-day hearing on the merits of the State’s CHINS petition. The court found the State’s medical evidence compelling, but reasoned that this evidence must be viewed in the totality of the circumstances. The court found that the nonmedical evidence established that parents were good parents, and that there was no nonmedical evidence to support the allegation that parents abused Z.L. It thus concluded that the State failed to prove by a preponderance of the evidence that Z.L. was abused or that M.L. was in need of care or supervision.

While we might have reached a different decision than the family court, we are not persuaded that the court held the State to a heightened standard of proof. The court heard evidence over the course of nine days, reached its decision after much review and deliberation. We are mindful that it is the exclusive role of the family court to weigh the evidence and assess the credibility of witnesses. This case turned on the court’s assessment of the weight of the evidence. While the State may have satisfied its prima facie burden, the family court was ultimately not persuaded by its evidence. In other words, although there was evidence tending to support the State’s position, the court reasoned that such evidence, in its judgment, did not preponderate, and so, in a legal sense, it was unable to find that the children were CHINS. We will not disturb the court’s assessment of the evidence on appeal.

The Chief Justice dissents on the grounds that the court explicitly stated it was not persuaded by the parents’ experts, that “a fall involving M.L. was probably not the cause of the extensive acute damage to the skull and brain;” and that Z.L.’s injuries “were probably the result of non-accidental means.” According to Justice Reiber, it was beyond the court’s discretion to ignore these findings because the parents also appeared to be good people. Under our standard of proof, competent, credible medical evidence of abuse cannot be overcome by testimony that parents appear to be caring and attentive.