Byrne v. Bercker

501 N.W.2d 402, 176 Wis. 2d 1037, 1993 Wisc. LEXIS 543

• Court: Wisconsin Supreme Court
• Decided: June 22, 1993
• Docket: 91-1782
• Status: Published

Opinions

PER CURIAM.

This is a review of an unpublished decision of the court of appeals dated May 28, 1992, which reversed an order for summary judgment granted by the circuit court for Milwaukee county, David V. Jennings, Jr., Judge. We reverse the decision of the court of appeals and direct dismissal of the complaint.

The question is whether the period of limitations had run on Elizabeth Byrne's civil action for damages against her father, Frank Bercker, for incestuous acts that "allegedly" occurred from 1940 to 1949. The controlling statute of limitations is sec. 893.587, Stats.¹

The facts which raise the question of whether the claim is time barred are substantially undisputed.²

On November 16, 1989, Elizabeth Byrne filed a complaint against her father, Frank Bercker, alleging that her father had incestuously abused her from the time she was two years old until she was eleven — from 1940 to 1949. At the present time plaintiff is approximately fifty-four years old and her father is approximately eighty. The record indicates that the complaint was served upon him in a nursing home.

Plaintiff alleged that, as a result of this sexual abuse, she suffered severe emotional and psychological damage. She alleges that she was unaware, however, that she had any emotional or psychological damage until, during the course of therapy, she recalled episodes of sexual abuse that took place almost fifty years earlier. She had no memory of these episodes of abuse until they were recalled in 1986.

The record, affidavits, and depositions on file show that, prior to 1986, the relationship between plaintiff and her father was apparently normal, and there is no evidence of any emotional or psychological aberrations, familial tensions, or injury before 1986.

In February 1986 plaintiff was in a head-on automobile collision. She sustained a head injury and a broken hip. The hip injury required that she be placed in traction, immobile and, in her eyes, in a vulnerable physical position. During this time she believed that the health care workers and physicians treating her were sexually abusing her — a belief which she now acknowledges is incorrect.

As a result of this episode, plaintiff was referred to a psychologist for treatment. It was only after the commencement of psychological treatment that plaintiff stated that she had been sexually abused by her father. This statement of recall of past events arose out of a series of episodes referred to as "flashbacks" or visualizations of alleged episodes of incestuous abuse that occurred in the 1940's. She asserted that she remembers the first assault, which took place when she was two years old.

Expert psychological opinions appearing in the record and affidavits in the circuit court record state that many incest victims repress their memories and only recall such episodes after many years.

The plaintiff acknowledges that memory of her sexual attacks was recalled by her more than two years prior to the commencement of the action. The plaintiffs brief in this court states:

We recognize that the memory of sexual abuse was at least partially recovered and was discussed in therapy more than two years prior to the date the instant lawsuit was filed. See, e.g. R. 13 Lazar deposition at p. 29, indicating that it was discussed in November, 1986. We also acknowledge that around this time the plaintiff had been told by Dr. Lazar that she was the victim of the abuse and that it caused her certain problems.

Plaintiff, despite this candid acknowledgment, then relies upon the deposition of Dr. Lazar, a psychologist, to support the assertion that, until the summer of 1989, plaintiff was "blamelessly ignorant" and that it was not until that time she was psychologically capable of bringing the lawsuit.

Following the commencement of the action and an answer by the defendant denying all allegations of sexual abuse, defendant moved in March of 1991, for summary judgment, asserting that the action was barred by the statute of limitations.

The facts recited above are derived from the affidavits, counter-affidavits, and depositions filed in the circuit court summary judgment proceeding. These affidavits and supporting documents indisputably demonstrate that, by July of 1986, plaintiff recalled the alleged incestuous assaults. The record also demonstrates that, by December 1986, she acknowledged that the assaulter had been her father. During this period she was receiving treatment and had been told by her therapists that she was a victim, not a perpetrator, and that her emotional symptoms were caused by the incestuous conduct of her father.³

The defense to defendant's summary judgment motion in the circuit court was based primarily upon the expert opinion of Dr. Lazar. Although Dr. Lazar acknowledges that plaintiff as early as July 1986, was aware that she had been the subject of incestuous assaults by her father and that such assaults were the cause of her symptoms, it was not until the summer of 1989 that the plaintiff "could shift the blame to her father," rather than blame herself as most incest victims do. Until then, Dr. Lazar stated, she was psychologically and emotionally incapable of accepting the reality of the sexual abuse and could not have taken legal action.

Thus, the plaintiff asserted that a complaint filed in November of 1991 was within two years of "discovery" in 1989 and was not barred by the statute.⁴

The plaintiff, in the summary judgment proceeding, based her legal argument on footnote 7 appearing in Hammer v. Hammer, 142 Wis. 2d 257, at 266, 418 N.W.2d 23 (Ct. App. 1987). That footnote, which plaintiff asserts is an integral part of the "holding" of Hammer, states:

'[E]ven though a daughter may know that she has been injured, until such time as she is able to shift the blame for the incestuous abuse of her father, it will be impossible for her to realize that his behavior caused her psychological disorders.'

The defendant, in further support of his motion for summary judgment, asserted that the footnote relied upon by plaintiff as the holding of Hammer was mere obiter dictum and was not a part of the very specifically stated holding of the Hammer court at 264:

We hold, as a matter of law, that a cause of action for incestuous abuse will not accrue until the victim discovers, or in the exercise of reasonable diligence should have discovered, the fact and cause of the injury. See Borello v. U.S. Oil Co., 130 Wis. 2d 397, 411, 388 N.W.2d 140, 146 (1986). (Emphasis supplied.)

Defendant asserted that, consistent with Hammer's precise holding, which extended the discovery doctrine to victims of incest, all the elements for the accrual of the civil cause of action were indisputably present or discovered in mid-1986, because plaintiff knew that her father had sexually abused her and that her emotional problems — her injuries — were caused by that abuse.

Defendant also points out that sec. 893.587, Stats., the statute of limitations, supra, inarguably was intended to codify the holding of Hammer, and did no more than incorporate that precise holding in the Limitation of Actions section of the statutes. The legislature did not include or refer to footnote 7 relied upon by plaintiff as an integral part of the Hammer holding.

Defendant asserted that to judicially formulate a rule that would leave to the subjective impulse of a plaintiff the determination of when that person was ready to commence an action would be contrary to the standard of the knew or should have known rationale of Borello, Hammer, and sec. 893.587, Stats., the codifying statute.

Arguments stated above were made by counsel at the circuit court hearing. The judge accepted the arguments of the defendant, and an order for summary judgment was issued by the court. The court found as facts:

[T]hat by December of 1986 the plaintiff had recalled these alleged sexual assaults. That plaintiff was being treated by her experts for the problems that they felt she was experiencing and that she is claimed to have experienced as a result of these alleged sexual assaults. That plaintiffs experts have testified that she knew she needed professional care for her alleged sexual abuse problems and understood that this was very important. Further, that plaintiffs experts have testified that as of December of 1986, plaintiff had been told by them that this wasn't her fault and it was her father's fault and the problems that she was complaining of were caused by the alleged sexual assault and/or incestuous relationship.

Based on these findings of fact, which are not clearly erroneous, the circuit court could have additionally stated that plaintiff, when she realized that her problems were caused by her father, had in effect "shifted the blame" to her father. By 1986, i.e., the plaintiff had told her experts that it was her father's fault, not hers. This, however, is not the legal formulation of "cause" recognized in Bor ello.

In its conclusions of law, the circuit court relied wholly upon the Borello-Hammer holding for its rationale, stating:

That as of December of 1986, plaintiff discovered the fact and the probable cause and/or with the exercise of reasonable diligence should have discovered the fact and the probable cause of the injuries and damages that she claims to have occurred as a result of the alleged sexual assault and/or incestuous relationship in question.

In accordance with the findings of fact and the conclusions of law, the circuit court held the claim to be barred by the two-year statute of limitations because action was commenced more than two years after the accrual of the plaintiffs cause of action.

The plaintiff appealed from the circuit court's order dismissing the complaint.

The court of appeals reversed and remanded for a trial because the record showed that there were disputed material facts that would have to be resolved by a factfinder.⁵

Where facts, even if material, are disputed, those facts become irrelevant if, in giving full benefit to the party against whom summary judgment is sought, the claim nevertheless is barred as a matter of law.

The court of appeals reversed not only because there were disputed facts, but also because it concluded that the circuit court incorrectly applied the law. It reversed the circuit court and remanded. We accepted the review. We now reverse the court of appeals.

We find it difficult to determine from the opinion of the court of appeals in what respect the trial court incorrectly applied the law. As we view the trial court proceeding and opinion and the opinion of the court of appeals, it appears both courts applied precisely the same law. The court of appeals relied upon the same authorities and precedents urged by the defendant and accepted by the circuit court in finding that as a matter of law the rule of Borello, Hammer, and sec. 893.587, Stats., effective July 1, 1989, was applicable. We see no error of law committed by the circuit court.

The court of appeals, however, used the language that "it was not until the summer of 1989 that she had the ability to overcome her alleged guilt and determine that Bercker was the cause of her injuries." This appears to be an elision of the "shifting of blame" rationale. Moreover, this statement is factually incorrect, because the plaintiff knew by 1986 of the abuse by her father and that such abuse was the cause of her injuries.

We conclude, however, that "shifting the blame" language has not been made a part of the statutory test under either sec. 893.587, Stats., or by the prior case law of this court or the court of appeals. While such language, derived from the law review comment, appears in footnote 7 of Hammer, it in no way constitutes a part of the Hammer holding. Also, as argued by defendant, the legislature did not see fit to conclude that footnote 7 was a necessary element under Wisconsin law that must be satisfied before it can be said that an incest plaintiffs cause of action has accrued and the statute of limitations has commenced to run.

We conclude that the statute of limitations as it appears in sec. 893.587, Stats., contains all the elements that this court and the legislature in codification of the holdings of this court and of the court of appeals require for the commencement of time to commence an action. To repeat the statute of limitations (sec. 893.587):

An action to recover damages for injury caused by incest shall be commenced within 2 years after the plaintiff discovers the fact and probable cause, or with the exercise of reasonable diligence, should have discovered the fact and the probable cause, of the injury, whichever occurs first.

In the instant case it is undisputed, indeed it is acknowledged in plaintiffs brief, that plaintiff was aware by mid-1986 that her difficulties stemmed from incestuous abuse by her father and that she had been told that she was the victim of that abuse and was not the perpetrator.

Thus, more than two years prior to her commencement of the action for damages, she knew the nature and extent of her injuries and knew that her father was the cause of those injuries.

Therapists take the position that healing is not possible until the plaintiff undergoes an epiphany which in some mysterious way makes it possible for her to say that she is blameless and the perpetrator is solely to blame. This may well be true, but statutes that limit the time in which to sue or which, by estoppel or by delayed discovery, extend the time to sue are designed to assure fairness in our judicial system, i.e., that no one will be barred from suit until one knows or should have known that there is a cause of action and, conversely, that defendants will be protected, after a period of limitations has run, from a plaintiff who does not timely assert rights when aware of all the necessary elements of the cause of action.

It is undisputed that, by mid-1986, the plaintiff knew of her injury, its nature, and who caused it. This satisfies the statutory test and the Borello-Hammer test. At that time the cause of action accrued and the two-year period of limitations commenced.

We do not discount the psychologist's perception that shifting the blame is therapeutically significant, but we think it inappropriate to tailor statutes of limitation to therapeutic goals in derogation of the specific test of the statute of limitations. To the extent that the court of appeals in the instant case believed that footnote 7 of Hammer constituted a part of the test of "discovered or should have discovered" and was a necessary element of a cause of action, we conclude that the court of appeals was in error and misinterpreted the Hammer opinion.

Although there are fundamental facts in dispute, e.g., the allegation of incest and the denial of that incest in the defendant's answer, these facts are not material in the posture of this case, where plaintiff has forfeited her right to contest these facts by failure to timely file an action after she knew the fact and nature of her injuries and had reason to know and, in fact knew, that her father's conduct was the cause of those injuries. Plaintiffs cause of action is barred by the running of the period of limitations.

By the Court. — We reverse the court of appeals and remand the cause to the circuit court with directions to dismiss the plaintiffs complaint.

1 Section 893.587, Stats., provides:

893.587 Incest; limitation. An action to recover damages for injury caused by incest shall be commenced within 2 years after the plaintiff discovers the fact and the probable cause, or with the exercise of reasonable diligence should have discovered the fact and the probable cause, of the injury, whichever occurs first.

2 The statement of facts is largely that which appears in the plaintiffs brief in this court and is also gleaned from the allegations of the complaint.

3 The record indicates that, during this period of recall, in addition to plaintiffs earlier belief that she had been sexually assaulted while in traction, she also asserted that she was a Native American in origin, an assertion no one claims has any factual basis. She also claims to have been sexually assaulted by her mother by the repeated use of enemas, an assertion denied by Jane Bercker and, in respect to which, she recalls only one enema episode, in which the enema was administered by a registered nurse pursuant to directions of a named physician.

4 It should be noted that neither party based its summary judgment arguments on whether there were disputed matters of material facts. Each of them treated the question as one of law, although, the court of appeals held, summary judgment was inappropriate because there were disputed facts that were material in light of its interpretation of the law.

5 The court of appeals stated that the plaintiffs complaint and affidavits claimed episodes of incest, while defendant's answer and counter-affidavits denied any incestuous assaults.