Cummings v. Bartlett CV-94-183-SD 06/19/97 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Mary Lou Cummings
v. Civil No. 94-183-SD
Warren A. Bartlett
OPINION AND ORDER
In this diversity action, plaintiff Mary Lou Cummings
asserts several tort claims against defendant Warren A. Bartlett
based upon Bartlett's alleged sexual abuse of her when she was a
child.
Following its denial of defendant's motion for summary
judgment, the court ruled that the statute of limitations issue
should be determined by the court prior to trial. This Opinion
and Order addresses the relevant factual and legal issues raised
in the course of a one-day evidentiary hearing, at which
testimony was heard from the plaintiff and a certified
psychologist specializing in adult survivors of childhood sexual
abuse. The expert witness was relied upon by both parties. Background
Mary Lou Cummings was born on October 17, 1962, and moved
with her family to Lancaster, New Hampshire, when she was in the
third grade.1 She alleges that between the years 1972 and 1978
she was repeatedly sexually abused by Warren Bartlett, a close
friend of her family's. The abuse started when she was about ten
and occurred most freguently when she was between the ages of 11
and ll^.2
The abuse would occur when plaintiff paid overnight visits
to the Bartlett home while her parents were away. Bartlett would
enter the room where Cummings was sleeping, get into bed with
her, and fondle her genital areas and rub against her. Bartlett,
a photographer, also allegedly sexually assaulted plaintiff in
the darkroom of his studio.
Cummings told no one of the abuse until September of 1992,
when she received a telephone call from her mother informing her
that her sister remembered being sexually abused by Bartlett as a
child. This information spurred plaintiff to acknowledge to
another for the first time that she had been sexually abused.
1Cummings presently resides in Cincinnati, Ohio.
2The court has assumed for the purposes of this Opinion and Order that the abuse in fact occurred. Of course, the ultimate determination is for the jury.
2 After telling her mother, Cummings entered therapy for the first
time to discuss the abuse. Sh e also began suffering
emotional distress in the form of nightmares, anger, and other
symptoms. Cummings filed this litigation on April 11, 1994.
Defendant denies that he ever sexually abused plaintiff, and
contends that, at most, plaintiff spent only one week overnight
in his home during the time period alleged. He also contends
that between 1973 and late 1991 he and his wife had cordial
relations with the plaintiff and that on the occasion of the last
visit the plaintiff had suggested to the defendant a joint skiing
outing for the winter of 1992.
Further relevant facts will be developed in the course of
this Opinion and Order.
Discussion
Applying an early version of the New Hampshire statute of
limitations. Revised Statutes Annotated (RSA) 508:4, I, the court
has previously determined that the governing limitations period
is six years, which had long since expired by the time the
plaintiff filed her complaint in 1994.3 In addition, although
plaintiff was a child at the time of the abuse, the two-year
3The earlier statute was applied because plaintiff's cause of action arose prior to a 1986 amendment which would have reduced the period to three years.
3 limitations period that applied once she attained the age of
majority had also expired. See RSA 508:8. Plaintiff wishes to
invoke the common-law discovery rule to toll the limitations
period until September of 1992, when she first acknowledged to
another that she had been sexually abused.
Under the discovery rule, "'a cause of action does not
accrue until the plaintiff discovers or, in the exercise of
reasonable diligence, should have discovered both the fact of his
injury and the cause thereof.'" McCollum v. D'Arcv, 138 N.H.
285, 287, 638 A.2d 797, 798 (1994) (guoting Heath v. Sears,
Roebuck & C o ., 123 N.H. 512, 523-24, 464 A.2d 288, 294 (1983)).
The rule reguires that the court weigh the parties' competing
interests and consider "'the unfairness which would result to a
plaintiff blamelessly ignorant of her injury whose action would
be cut off before she was aware of its existence.'" Rowe v. John
Deere, 130 N.H. 18, 22-23, 533 A.2d 375, 377 (1987) (guoting
Shilladv v. Elliot Community Hosp., 114 N.H. 321, 323, 320 A.2d
637, 638 (1974)) .
Many courts have struggled with the issue of whether, and to
what extent, a victim of childhood sexual abuse can take
advantage of the discovery rule. Successful invocation of the
discovery rule depends in part on the extent to which the victim
remembered the abuse. In one leading New Hampshire case,
4 McCollum, supra, 138 N.H. at 286-288, 638 A.2d at 798, the court
held that the discovery rule could be used by a plaintiff who had
repressed all memory of abuse perpetrated by her parents until 34
years later when she began experiencing flashbacks that were
triggered by her attendance at a therapy workshop on child abuse.
The court reasoned that since the abuse and its causal connection
to the plaintiff's injuries were not discovered until decades
after the abuse occurred, the plaintiff's interest in being
compensated for her injuries outweighed any competing interest
the defendant may have had in avoiding litigation. Id. at 288,
638 A.2d at 799.
In another leading case, Conrad v. Hazen, 140 N.H. 249, 665
A.2d 372 (1995), the plaintiff did not repress the memory of a
childhood sexual assault, but did not identify the assault as
rape until she entered counseling as an adult. The court ruled
that the controlling guestion was whether the plaintiff's
original injury was "'sufficiently serious to apprise the
plaintiff that a possible violation of [her] rights had taken
place.'" Id. at 252, 665 A.2d at 375 (guoting Rowe v. John
Deere, 130 N.H. 18, 22, 533 A.2d 375, 377 (1987)). If the
original injury was of such character, the discovery rule would
not apply. At the time of her assault, Conrad experienced pain
and physical injury and emotionally felt "devastated," as well as
5 "dirty, sick, and scared." Id. at 253, 665 A.2d at 375.
Although hazarding that such injuries "appeared" to indicate that
the discovery rule could not be applied, the court ultimately
chose to remand the case to the trial court to determine the
guestion in the first instance. Id. at 253, 665 A.2d at 376.
Cummings's case falls somewhere in between the facts of
McCollum and Conrad. Unlike McCollum, Cummings did not repress
all memory of the events constituting the abuse. Instead,
Cummings engaged in a defensive mechanism known as "adaptive
denial," Tr. 79, which only somewhat affected her memory of the
events in guestion, but wholly precluded her from realizing that
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Cummings v. Bartlett CV-94-183-SD 06/19/97 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Mary Lou Cummings
v. Civil No. 94-183-SD
Warren A. Bartlett
OPINION AND ORDER
In this diversity action, plaintiff Mary Lou Cummings
asserts several tort claims against defendant Warren A. Bartlett
based upon Bartlett's alleged sexual abuse of her when she was a
child.
Following its denial of defendant's motion for summary
judgment, the court ruled that the statute of limitations issue
should be determined by the court prior to trial. This Opinion
and Order addresses the relevant factual and legal issues raised
in the course of a one-day evidentiary hearing, at which
testimony was heard from the plaintiff and a certified
psychologist specializing in adult survivors of childhood sexual
abuse. The expert witness was relied upon by both parties. Background
Mary Lou Cummings was born on October 17, 1962, and moved
with her family to Lancaster, New Hampshire, when she was in the
third grade.1 She alleges that between the years 1972 and 1978
she was repeatedly sexually abused by Warren Bartlett, a close
friend of her family's. The abuse started when she was about ten
and occurred most freguently when she was between the ages of 11
and ll^.2
The abuse would occur when plaintiff paid overnight visits
to the Bartlett home while her parents were away. Bartlett would
enter the room where Cummings was sleeping, get into bed with
her, and fondle her genital areas and rub against her. Bartlett,
a photographer, also allegedly sexually assaulted plaintiff in
the darkroom of his studio.
Cummings told no one of the abuse until September of 1992,
when she received a telephone call from her mother informing her
that her sister remembered being sexually abused by Bartlett as a
child. This information spurred plaintiff to acknowledge to
another for the first time that she had been sexually abused.
1Cummings presently resides in Cincinnati, Ohio.
2The court has assumed for the purposes of this Opinion and Order that the abuse in fact occurred. Of course, the ultimate determination is for the jury.
2 After telling her mother, Cummings entered therapy for the first
time to discuss the abuse. Sh e also began suffering
emotional distress in the form of nightmares, anger, and other
symptoms. Cummings filed this litigation on April 11, 1994.
Defendant denies that he ever sexually abused plaintiff, and
contends that, at most, plaintiff spent only one week overnight
in his home during the time period alleged. He also contends
that between 1973 and late 1991 he and his wife had cordial
relations with the plaintiff and that on the occasion of the last
visit the plaintiff had suggested to the defendant a joint skiing
outing for the winter of 1992.
Further relevant facts will be developed in the course of
this Opinion and Order.
Discussion
Applying an early version of the New Hampshire statute of
limitations. Revised Statutes Annotated (RSA) 508:4, I, the court
has previously determined that the governing limitations period
is six years, which had long since expired by the time the
plaintiff filed her complaint in 1994.3 In addition, although
plaintiff was a child at the time of the abuse, the two-year
3The earlier statute was applied because plaintiff's cause of action arose prior to a 1986 amendment which would have reduced the period to three years.
3 limitations period that applied once she attained the age of
majority had also expired. See RSA 508:8. Plaintiff wishes to
invoke the common-law discovery rule to toll the limitations
period until September of 1992, when she first acknowledged to
another that she had been sexually abused.
Under the discovery rule, "'a cause of action does not
accrue until the plaintiff discovers or, in the exercise of
reasonable diligence, should have discovered both the fact of his
injury and the cause thereof.'" McCollum v. D'Arcv, 138 N.H.
285, 287, 638 A.2d 797, 798 (1994) (guoting Heath v. Sears,
Roebuck & C o ., 123 N.H. 512, 523-24, 464 A.2d 288, 294 (1983)).
The rule reguires that the court weigh the parties' competing
interests and consider "'the unfairness which would result to a
plaintiff blamelessly ignorant of her injury whose action would
be cut off before she was aware of its existence.'" Rowe v. John
Deere, 130 N.H. 18, 22-23, 533 A.2d 375, 377 (1987) (guoting
Shilladv v. Elliot Community Hosp., 114 N.H. 321, 323, 320 A.2d
637, 638 (1974)) .
Many courts have struggled with the issue of whether, and to
what extent, a victim of childhood sexual abuse can take
advantage of the discovery rule. Successful invocation of the
discovery rule depends in part on the extent to which the victim
remembered the abuse. In one leading New Hampshire case,
4 McCollum, supra, 138 N.H. at 286-288, 638 A.2d at 798, the court
held that the discovery rule could be used by a plaintiff who had
repressed all memory of abuse perpetrated by her parents until 34
years later when she began experiencing flashbacks that were
triggered by her attendance at a therapy workshop on child abuse.
The court reasoned that since the abuse and its causal connection
to the plaintiff's injuries were not discovered until decades
after the abuse occurred, the plaintiff's interest in being
compensated for her injuries outweighed any competing interest
the defendant may have had in avoiding litigation. Id. at 288,
638 A.2d at 799.
In another leading case, Conrad v. Hazen, 140 N.H. 249, 665
A.2d 372 (1995), the plaintiff did not repress the memory of a
childhood sexual assault, but did not identify the assault as
rape until she entered counseling as an adult. The court ruled
that the controlling guestion was whether the plaintiff's
original injury was "'sufficiently serious to apprise the
plaintiff that a possible violation of [her] rights had taken
place.'" Id. at 252, 665 A.2d at 375 (guoting Rowe v. John
Deere, 130 N.H. 18, 22, 533 A.2d 375, 377 (1987)). If the
original injury was of such character, the discovery rule would
not apply. At the time of her assault, Conrad experienced pain
and physical injury and emotionally felt "devastated," as well as
5 "dirty, sick, and scared." Id. at 253, 665 A.2d at 375.
Although hazarding that such injuries "appeared" to indicate that
the discovery rule could not be applied, the court ultimately
chose to remand the case to the trial court to determine the
guestion in the first instance. Id. at 253, 665 A.2d at 376.
Cummings's case falls somewhere in between the facts of
McCollum and Conrad. Unlike McCollum, Cummings did not repress
all memory of the events constituting the abuse. Instead,
Cummings engaged in a defensive mechanism known as "adaptive
denial," Tr. 79, which only somewhat affected her memory of the
events in guestion, but wholly precluded her from realizing that
her legal rights had been violated. In addition, unlike in
Conrad, there is only slight evidence that Cummings had any
notice of her claim at the time the abuse occurred.
When a victim has retained some memory of the events that
constituted childhood sexual abuse, courts have tended to
concentrate on a set constellation of factors when assessing
whether he or she had notice of a cause of action. Although by
no means an exhaustive list, courts have considered such issues
as the nature of the plaintiff's physical injuries at the time of
the abuse; whether the victim reported the abuse to anyone near
or at the time; whether the victim experienced any emotional
injury at the time; whether the victim engaged in therapy; and
6 whether the victim intellectually recognized her injuries. See,
e.g. Conrad, supra, 140 N.H. at 252-53, 665 A.2d at 375
(focusing on victim's physical and emotional injury at time of
incident); Armstrong v. Lamy, 938 F. Supp. 1018, 1040-41 (D.
Mass. 1996) (discussing Massachusetts law).
Cummings experienced no physical pain. She did not seek or
need to seek medical treatment; she did not seek counseling or
therapy at the time. She did not even experience any acute
psychological trauma at the time, at least none of which she was
aware, aside from some fear, isolation, and shame. She never
reported the abuse to anyone until the conversation with her
mother in 1992. Thus, the signals that would ordinarily indicate
that a victim was aware or should have been aware of abuse were
not present here.
Despite the absence of these signals, one might still be
prompted to ask: How could the victim of incest not be aware of
the cause of action at the time? The answer lies in the theory,
increasingly accepted by courts, that many victims of childhood
incest blame themselves for the conduct in order to preserve the
close, "loving" relationship they have established with their
abuser. Tr. 68-69. The incestuous relationship fosters a state
of mind in the victim which obscures his or her ability to judge
an incident as abuse. This is what happened to Mary Lou
7 Cummings.
Cummings was first introduced to Bartlett when she was about
ten years old and considered him a member of her family. She
called him "Uncle Warren" and engaged in many recreational
activities with him. The abuse began when she was about eleven
years old and continued for the next year and a half, at which
point it became less freguent. While the abuse was occurring,
Bartlett would tell Cummings that he loved her. After the abuse
had ended, Cummings maintained a close, warm relationship with
Bartlett.
Considering that Bartlett may have performed unspeakable
acts, Cummings's behavior might seem unusual. However, the
testimony of Dr. Stanley at the evidentiary hearing revealed that
when a child, particularly a younger child, is abused by a
trusted caretaker or family member, the child often does not
recognize that the abuse is wrong. Tr. 74-76. Cummings was
conditioned to trust and obey Bartlett, Tr. 68, and she blamed
herself for what happened, Tr. 28. Therefore, Cummings's
relationship with Bartlett precluded her from understanding that
what happened to her was abuse. Cummings retained this state of
mind into her adult years until a triggering event moved her to
acknowledge for the first time that she may have been wronged.
The triggering event appears to have been the telephone call she received from her mother in 1992.
The New Hampshire discovery rule requires that the court
apply not a subjective test, but an objective one. The court
finds not only that Cummings had no actual knowledge of the abuse
sufficient to apprise her that her legal rights had been
violated, but also that a reasonable person in Cummings's
position also would have had impaired judgment and would not have
been able to discover a cause of action at the time.
The court's conclusion comports with several other cases
that have dealt with the issue of whether a victim of incest can
resort to the discovery rule. In the context of a motion for
summary judgment. Judge Keeton recently recognized that a man who
retained a memory of childhood incest could nonetheless invoke
the discovery rule in Massachusetts4 because defendant's conduct
affected the plaintiff's ability to judge and thereby prevented
him from discovering his injury and its cause. Armstrong, supra,
938 F. Supp. at 1039.
Some recent New Hampshire superior courts also have applied
4The Massachusetts discovery rule is similar to that of New Hampshire in that they both involve an objective test. In Massachusetts, "[t]he statute of limitations starts to run 'when an event or events have occurred that were reasonably likely to put the plaintiff on notice that someone may have caused her injury.'" Armstrong v. Lamy, 938 F. Supp. 1018, 1038 (D. Mass. 1996) (quoting Bowen v. Eli Lilly & Co., 557 N.E.2d 739, 740 (Mass. 1990)). the discovery rule when the evidence indicated that a victim of
abuse was unable to recognize the harm and/or the cause of action
at the time. See, e.g., Conrad v. Hazen, No. 93-1210 (Rockingham
County, June 27, 1996) (on remand from New Hampshire Supreme
Court) (hereinafter, "Conrad II"); Jacobi v. Rechberger, No. 94-
482 (Merrimack County, April 12, 1996). In Conrad, the plaintiff
alleged that she had been sexually assaulted by a member of a
religious cult. The cult taught her to respect and obey the
defendant, with whom she had a close relationship. On remand,
the superior court noted that the plaintiff's thought processes
were so impaired that she was not aware she had been injured, and
the court therefore found that she had not been sufficiently
apprised that a possible violation of her rights had occurred.
Conrad II, supra, slip op. at 22-23.
Confronted with a similar case. Judge DiClerico accepted for
summary judgment purposes the plaintiff's theory that her own
self-blame, guilt, and denial precluded her from recognizing that
her parents' egregious physical abuse of her was wrongful
conduct. See Sinclair v. Brill, 857 F. Supp. 132, 140 (D.N.H.
1994) .
Like Sinclair and the other victims mentioned above,
Cummings placed her trust and love in a parental figure and
dutifully submitted to his authority. Having been taught and
10 conditioned by Bartlett, Cummings was unable to recognize that
his conduct was wrong and even that she had been injured. To
expect her then to be ready to assert her legal rights upon
reaching the age of majority would be not only contrary to the
law in New Hampshire, but it would work an unnecessarily harsh
result.
Accordingly, for the reasons set forth herein, the court
finds and rules that the plaintiff was not sufficiently apprised
of a possible violation of her rights until 1992, when she first
acknowledged that what happened to her was wrong. Plaintiff
filed her action in a timely manner following this revelation,
and therefore her action is not time-barred.
A status conference will be held in this action on Thursday,
July 10, 1997, at 10:00 a.m. in the Rudman Courthouse.
SO ORDERED.
Shane Devine, Senior Judge United States District Court
June 19, 1997
cc: Benette Pizzimenti, Esg. Janice E. McLaughlin, Esg.