John Doe et al. v. Robert Bogan et al. (2014)

MEMORANDUM OF DECISION RE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (# 119.00)

The plaintiffs John and Jane Doe, who are brother and sister, brought this action by complaint dated August 19, 2012.¹  The defendants, who are husband and wife, served as the plaintiffs' foster parents from 1970 through 1973.   The complaint alleges that the defendant Robert Bogan engaged in “sexual, lude [sic] and harmful contact” with the then minor plaintiffs and that his wife, the defendant Joyce Bogan, was aware that the contact took place.   The first count of the complaint sounds in negligence, the second in recklessness, and the third in false imprisonment.   Each count is directed at both defendants.

By motion dated September 30, 2013, the defendants ask the court to render summary judgment on three grounds.   First, the defendants assert that all of the plaintiff Jane Doe's claims are barred by the limitations provisions contained in Connecticut General Statutes § 52–577d.   Second, the defendants assert that both plaintiffs' false imprisonment claims are time barred by Connecticut General Statutes § 52–577.   Finally, the defendant Joyce Bogan asserts that she is entitled to judgment in her favor on all claims brought against her because they are supported by insufficient evidence.

“Practice Book § 384 [now § 17–49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”  Miller v. United Technologies Corp., 233 Conn. 732, 744–45, 660 A.2d 810 (1995).  “In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.”  Miller, 233 Conn. 732, at 745, 660 A.2d 810.  “The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law;  and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact.   Practice Book § 381 [now § 17–46].”  (Internal citations omitted.)  Dowling v. Finley Associates, Inc., 248 Conn. 364, 369–70, 727 A.2d 1245, 1249 (1999).

I. The Plaintiff Jane Doe's Claims are Barred by the Applicable Statute of Limitations

Connecticut General Statutes § 52–577d allows a person who suffered sexual abuse as a minor to bring a claim within 30 years of attaining the age of majority:  “Notwithstanding the provisions of section 52–577, no action to recover damages for personal injury to a minor, including emotional distress, caused by sexual abuse, sexual exploitation or sexual assault may be brought by such person later than thirty years from the date such person attains the age of majority.”   There is no issue of fact that Jane Doe was born prior to August 1963.²  As a result, the period during which she could bring a valid claim against the defendants elapsed some time in 2011 and this case was not brought until August 2012.   Therefore, the plaintiff Jane Doe's claims against both defendants are barred by the limitations provisions contained in C.G.S. § 52–577d.

However, the plaintiff Jane Doe argues that fraudulent concealment on the part of the defendants served to toll the statute of limitations.  “If any person, liable to an action by another, fraudulently conceals from him the existence of the cause of such action, such cause of action shall be deemed to accrue against such person so liable therefore at the time when the person entitled to sue thereon first discovers its existence.”  Connecticut General Statutes § 52–595.   In Martinelli v. Bridgeport Roman Catholic Diocesan Corp., 196 F.3d 409 (2d Cir.1999), the Court of Appeals held that § 52–595 can apply to a cause of action that would have been barred by § 52–577d:  “Because this statute constitutes a clear and unambiguous general exception to any statute of limitations that does not specifically preclude its application, it applies to claims governed by § 52–577d, the sexual assault statute of limitations.”   Martinelli, 196 F.3d at 419.  (Citation omitted.)

The plaintiff Jane Doe asserts that during a 1997 phone call, which for purposes of this motion is assumed to have occurred as alleged, Robert Bogan told her there was nothing that she could do about the alleged abuse.   Jane Doe also asserts that during the same call, Joyce Bogan made a similar statement concerning the plaintiff's ability to do anything about the alleged abuse.   Jane Doe argues that these statements constitute proof of fraudulent concealment.   In order for fraudulent concealment to toll the limitations period contained in § 52–577d, it must satisfy three tests:  First, a defendant must have actual awareness, rather than imputed knowledge, of the facts necessary to establish the plaintiff's cause of action;  second, the defendant must intentionally conceal these facts from the plaintiff and third, the defendant's concealment of the facts must be for the purpose of obtaining delay on the plaintiff's part in filing a complaint on his or her cause of action.  Bartone v. Robert L. Day Co., Inc., 232 Conn. 527, 533 (1995).

The court finds that the telephone call at issue does not satisfy the test set forth in Bartone.   While the defendants allegedly told Jane Doe that she had no recourse for her claims of abuse, these statements did not constitute the concealment of “facts” that the test requires.   Even if the defendants' statements could be construed as statements of fact, there is no evidence that the defendants possessed “actual awareness” that their statements were inaccurate.   As a result, Jane Doe's assertions of fraudulent concealment fail as a matter of law, the limitations period was not tolled, and her claims against both defendants are consequently barred by the limitations provision contained in C.G.S. § 52–577d.

II. The Plaintiff John Doe's Claims of False Imprisonment are not Barred by the Applicable Statute of Limitations

The defendants argue that summary judgment should be granted in their favor against plaintiff John Doe on Count Three of the complaint, which sounds in false imprisonment, because the three-year limitations provision contained in Conn. Gen.Stat. § 52–577 applies rather than the 30–year post-majority limitations period contained in Conn. Gen.Stat. § 52–577d and, as a result, the claim is barred.³

In two Connecticut Superior Court cases, the court ruled that the 30–year post-majority limitations period contained in Conn. Gen.Stat. § 52–577d applied to claims other than sexual assault provided they were related to such claims.   In Lawson v. Lawson, Judicial District of Litchfield, CV99–80780S (January 23, 2001, DiPentima, J.) [29 Conn. L. Rptr. 264], the court determined that the appropriate statute of limitations for personal injury related to sexual misconduct caused by negligence was Conn. Gen.Stat. § 52–577d, not Conn. Gen.Stat. § 52–577, citing the “bizarre” result that would occur from allowing a negligent defendant to claim the three-year statute of limitations rather than the 30–year statute of limitations that applies to perpetrators of sexual assault of a minor.   Similarly, in Chance v. Leno's Lawn Service, LLC, Judicial District of Litchfield, CV065001435S (October 16, 2009, Pickard, J.) [48 Conn. L. Rptr. 646], the court determined that Conn. Gen.Stat. § 52–577d applies to claims of emotional distress stemming from sexual assault because “emotional distress constitutes a ‘personal injury’ under § 52–577d.”

The application of a three-year statute of limitations to the false imprisonment claims in this case would also frustrate the purpose of Conn. Gen.Stat. § 52–577d, which the Legislature enacted to “provide minor victims of sexual abuse with an opportunity to exercise their rights against the offender once they had attained the age of majority and could exercise control over their lives.   H.R. Proc. Pt. 2 1986 Session, pp. 4387–97.”  Todd M. v. Richard L., 44 Conn.Sup. 527, 533 (Super.Ct.1995).

Based on the foregoing, the court concludes that the 30–year limitations period contained in Conn. Gen. Stat § 52–577d should apply to plaintiff's false imprisonment claims rather than the three-year statute of limitations period applied under Conn. Gen.Stat. § 52–577.   There being no issue of fact that John Doe's claims of false imprisonment were brought within 30 years of John Doe reaching the age of majority, the defendants' claim for summary judgment is hereby denied regarding those claims.

III. The Plaintiff John Doe's Claims against Joyce Bogan raise Genuine Issues of Material Fact

The defendant Joyce Bogan seeks summary judgment on the claims made against her, arguing that no genuine issue of material fact exists regarding her lack of liability for the alleged acts of her husband.   The court rules to the contrary, finding that the plaintiff John Doe's allegations are sufficient to raise a genuine issue of material fact regarding whether the defendant Joyce Bogan knew or should have known of the alleged sexual abuse.   Her presence in the house during the period of the alleged abuse, together with her alleged statements during the telephone call with Jane Doe, serves to provide “an evidentiary foundation to demonstrate the existence of a genuine issue of material fact,” Dowling, supra, sufficient to withstand a motion for summary judgment.   As a result, the defendant Joyce Bogan's request for the entry of summary judgment in her favor on the claims made against her is hereby denied.

CONCLUSION

The defendants' motion for summary judgment is granted in part and denied in part.   Judgment shall enter in favor of the defendants on all claims made by the plaintiff Jane Doe. Summary judgment is hereby denied on the remainder of the defendants' claims.   The plaintiff shall file a conforming pleading within 30 days of this decision.

James W. Abrams, Judge

FOOTNOTES

FN1. The plaintiffs sought and received permission to use pseudonyms in this lawsuit..  FN1. The plaintiffs sought and received permission to use pseudonyms in this lawsuit.

FN2. Defendants' Memorandum of Law in Support of Motion for Summary Judgment, September 28, 2013, 4–5..  FN2. Defendants' Memorandum of Law in Support of Motion for Summary Judgment, September 28, 2013, 4–5.

FN3. Because the court has previously ruled that the plaintiff Jane Doe's claims are time barred, the remainder of the decision refers only to John Doe's claims..  FN3. Because the court has previously ruled that the plaintiff Jane Doe's claims are time barred, the remainder of the decision refers only to John Doe's claims.

Abrams, James W., J.