Delayed Discovery Doctrine Held Not to Apply to Negligence Actions Involving Child Sexual Abuse

BrainIn an opinion filed on September 4, 2013, the Third District Court of Appeal held that the delayed discovery doctrine does not apply to extend the statute of limitations in a negligence action arising out of allegations of child sexual abuse.  The delayed discovery doctrine generally provides that a cause of action does not accrue until the plaintiff either knows or reasonably should know of the tortious act giving rise to the cause of action.  The date a cause of action accrues is important because it is from the date of accrual that the statute of limitations is calculated.

The delayed discovery doctrine was first applied in a childhood sexual abuse case by the Florida Supreme Court in Hearndon v. Graham, 767 So. 2d 1179 (Fla. 2000), which held that the delayed discovery doctrine applied to the accrual of an intentional tort action brought by a sexual abuse victim against the perpetrator.  The victim had alleged traumatic amnesia made her unable to recall the events for more than a decade.  In Hearndon, the Florida Supreme Court acknowledged that, in 1992, the Florida legislature had effectively adopted the delayed discovery doctrine with respect to intentional tort actions concerning child sexual abuse.  However, the Heardon case pre-dated the enactment of that legislation.  In adopting the delayed discovery doctrine in that case, the court effectively found a way to apply the new legislation to the older case.

Fast forward 13 years to the case of Cisko v. Diocese of Steubenville, Case No. 09-35639, 38 Fla. L. Weekly D1902a (September 4, 2013), in which Appellants/Plaintiffs had sued the Diocese for negligence relating to physical and sexual abuse alleged to have been suffered between 1966 and 1967 at the hands of two priest under the Diocese’s supervision.  The Plaintiffs claimed traumatic amnesia had rendered them unable to recall the events of abuse until May 2005.  The Diocese prevailed at summary judgment based upon the expiration of the four-year statute of limitations on negligence actions.  Citing Hearndon v. Graham, Appellants contended that the delayed discovery doctrine deferred the accrual of the cause of action.  The Third District found, however, that the Hearndon holding is limited, not only to cases of traumatic amnesia, but to intentional tort causes of action.

While the Third District’s holding is consistent with the current § 95.11(7), Florida Statutes, which extends the statute of limitations for intentional tort cases based on abuse, and cases which have refused to expand the statute’s application to negligence cases, it does raise an interesting policy consideration.  If the State of Florida is committed to redressing child sexual abuse regardless of when it may be discovered, should it matter whether the defendant is the perpetrator or someone who enabled the perpetrator, or what the specific cause of action against the defendant may be?

NJ Appeals Court Says Non-Driving Texters Can Be Liable for Accidents

15862_wpm_lowresIn a brow-raising opinon issued by the Superior Court of New Jersey Appellate Division this week, the court determined that a non-driving sender of text messages can potentially be liable for damages if an accident is caused by a distracted text recipient.  See Kubert v. Best, No. A-1128-12T4, (N.J. Super. Ct. App. Div., August 27, 2013).  In the case, the plaintiffs were injured when a texting teen crossed the median and collided with the plaintiffs’ motorcycle.  The trial court dismissed a claim against the person with whom the teen was texting, a 17 year-old “remote texter,” reasoning that that the remote sender did not have legal duty to avoid sending a text message to a person who is driving.  The appellate court disagreed with the trial court and concluded, under a common law negligence theory, that “a person sending text messages has a duty not to text someone who is driving if the texter knows, or has special reason to know, the recipient will view the text while driving.”  

The appeals court acknowledged that “one should not be held liable for sending a wireless transmission simply because some recipient might use his cell phone unlawfully and become distracted while driving. Whether by text, email, Twitter, or other means, the mere sending of a wireless transmission that unidentified drivers may receive and view is not enough to impose liability.”  Further, the court said, “We also conclude that liability is not established by showing only that the sender directed the message to a specific identified recipient, even if the sender knew the recipient was then driving.”  Rather, the court said, “Additional proofs are necessary to establish the sender’s liability, namely, that the sender also knew or had special reason to know that the driver would read the message while driving and would thus be distracted from attending to the road and the operation of the vehicle.” 

Interestingly, New Jersey’s texting ban makes it unlawful to read or send a text message while driving, so in order to impose liability, the sender would have to know or have reason to know that the recipient is not only driving, but that the driver will break the law and read the message while driving and become distracted.  To that end, the court acknowledged, “The sender should be able to assume that the recipient will read a text message only when it is safe and legal to do so, that is, when not operating a vehicle. However, if the sender knows that the recipient is both driving and will read the text immediately, then the sender has taken a foreseeable risk in sending a text at that time.”

The result reached in this case illustrates the difficulty in applying its holding.  Despite finding that a remote texter may potentially be liable, the court found that, in this case, the plaintiffs did not present sufficient evidence of the remote texter’s knowledge.  Because the remote sender had only sent one text while the recipeint was driving, and the contents of the messages were not entered into evidence, there was no proof that the sender knew her message was distracting the recipient from driving. 

In practice, this holding is certain to present interesting proof challenges for plaintiffs in the state with respect to whether someone “has special reason to know” that a driver will be prone to distraction.  The ultimate takeaway from this case is that, if you are texting a person in New Jersey that you know or learn is driving, and that person immediately responds, stop the communication immediately.  Good practice regardless of potential liability.

The full text of the opinion can be found here.