Sexual Abuse

August 28, 2008

Illinois Victim of Sexual Abuse Awarded $5 Million

As an Illinois attorney representing victims of sexual abuse I was very encouraged by the verdict returned yesterdy in St. Clair County awarding a former altar by $5 million against the Belleville Archdiocese. This is one of the most significant verdicts in Illinois involving childhood sexual abuse, and it included $2.6 million in punitive damages and $2.4 million in compensatory damages. The jury found that the diocese conspired to hush sex abuse allegations and allowed the priest free rein in the diocese even after church officials knew he couldn’t control his sexual urges toward young boys and girls.

Verdicts like this encourges other victims to come forward and clearly forces entities that are responsible for the care of our children to see that those in their employment are properly and promptly disciplined so as to prevent future acts of childhoood sexual abuse. One of the jurors who was interviewed after the verdict stated that the actions of the diocese were “appalling” and added “they kept placing Father Kownacki in the parishes.” A former diocesan official at the Belleville Archdioces testified that prior allegations concerning Father Kownacki were hushed up and that the victims were treated as “dirty laundry.” According to the evidence at trial it took more than 20 years for Kownacki to be removed from active ministry.

Since the abuse took place in the 1960’s the victim has had a difficult time defeating the statutue of limitations defenses that have been use for years to have these complaints dismissed. Recently, the Applellate Court for the Fifth District stated: “(w)e conclude that section 13-202.2(e) evinces a clear legislative intent that the 2003 amendment apply to all cases filed on or after its effective date, including those in which the allegations of abuse relate to events that preceded the amendment.” Doe v. Diocese of Dallas, 379 Ill. App. 3d 782, 792, 885 N.E. 2d 376, 384 (2008). This decision should allow victims to step forward and hold those accountable for sexual abuse that took place many years ago that were previously dismissed based on the statute of limitations. This verdict demonstates that it can and will be done!

July 30, 2008

Illinois Children Sexually Abused Given Protections

by Edmund Scanlan

Illinois children who are sexually or physically abused on school buses operated by school districts are now afforded the same legal protections that apply to passengers on common carriers. In Green v. Carlinville School District, 381 Ill. App. 3d 207, 887 N.E. 2d 451 (2008), the trial court granted the school district’s motion for summary judgment holding that the school district was not operating as a common carrier while transporting children on it school buses, and therefore did not owe a heightened duty of care to children sexually abused by its driver. In reversing the trial court, the Appellate Court Fourth District relied upon the Illinois Supreme Court’s 1882 decision in Chicago and Eastern Railroad v. Flexman, 103 Ill. 546, where the Supreme Court stated: “..the contract which existed between appellant as a common carrier and appellee as a passenger, was a guaranty on behalf of the carrier that appellee should be protected against personal injury from the agents or servants of appellant in charge of the train. It alone had the power of removal, and justice demands that it should be held responsible for their wrongful acts toward passengers while in charge of the train.” The Green court in interpretting the Flexman decision stated: “Our supreme court has long held that if an employee of a common carrier intentionally injures a passenger, the common carrier is liable for the passenger’s injuries, even if the employee’s actions were not in his actual or apparent scope of authority.” 381 Ill. App. 3d 207, 887 N.E. 2d 451, 456 (2008).

The decision in Green is very significant because it directly holds: “.. that school districts that operate school buses owe their students the highest degree of care to the same extent common carriers owe their passengers the highest degree of care.” 887 N.E. 2d at 456. Therefore, if a school bus driver intentionally assaults a child on the school bus physically or sexually, the school district is liable even though clearly outside the scope of employment. This decison requires school districts to conduct criminal background checks on its employees prior to hiring them as is required by 105 ILCS 5/34-18.5 and to vigilant in supervising its employees that it places in charge of children. Protection of children is an interest that deserves protection!

March 21, 2008

Illinois Childhood Sexual Abuse Victims Get A Break

by Edmund Scanlan

Illinois childhood sexual abuse victims were given a chance to bring their claims for injuries by an opinion by the Illinois Appellate Court, Fifth District that was released March 7, 2008, Doe v. Diocese of Dallas, 379 Ill. App. 3d 782, 885 N.E. 2d 376. Essentially the court held that the statute of limitations for bringing a claim for childhood sexual abuse that became effective on July 24, 2003, and which in summary increased the statute of limitaions to 5 years from “the date the person abuse discovers or through the use of reasonable deligence should discover both (i) that the act of childhood sexual abuse occurred and (ii) that the injury was caused by the childhood sexual abuse, 735 ILCS 5/13-202.2, could apply to a claim that the previous statute of limitations had already barred. The Illinois legislature passed this legislation in direct response to an opinion by the Illinois Supreme Court in 2000 which held that there is no requirement that a plaintiff must know the full extent of his injuries before the statute of limitations begins to run, and further held that Illinois law presumes an injury from an allegation of sexual abuse, Clay v. Kuhl, 189 Ill. 2d. 603, 727 N.E. 2d 217 (2000).

In 2006 two different Illinois Appellate Court decisions intrepretting 735 ILCS 5/13-202.2, reached the same conclusion “once a statute of limitations has expired, the defendant has a vested right to invoke the bar of the limitations period as a defense to a cause of action. That right cannot be taken away by the legislature wothout offending the due process protections of our state’s constitution.” Kuch v. Catholic Bishop of Chicago, 366 Ill. App. 3d 309, 313, 851 N.E. 2d 233, 236 (2006); see also Galloway v. Diocese of Springfield, 367 Ill. App. 3d 997, 857 N.E. 2d 737 (2006). Both cases cited to a 1997 decision by the Illinois Supreme Court that held that once a statute of repose has extinguished a cause of action, defendant has a vested right under the due process clause of the State Constitution to invoke the statutory repose period, even after the repose period was abolished by the legislature. M.E.H. v. L.H., 177 Ill. 2d 207, 685 N.E. 2d 335 (1997).

The issue the court recently wrestled with In Doe v. Diocese of Dallas, (2008), was statutory retroactivity and whether to use the “vested rights approach” or the “legislative intent approach.”
The court described the vested rights approach as “the law applied was that which was in effect at the time of the appeal unless the use of that law somehow interfered with a vested right…., with the vested rights approach the legislature’s intent regarding retroactivity was not relevant.” The court stated that “under the legislative intent approach, the presumption is against retroactive application of the statutory changes unless the legislature clearly indicates an intent that the amendments be so applied.”
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March 20, 2007

Illinois Sexual Abuse Victims Abused Again

by Edmund Scanlan

Illinois sexual abuse victims often confront confusing statute of limitations issues when bringing claims for chilhood sexual abuse. The Illinois Supreme Court held that under the common law discovery rule governing when a statute of limitations commences, there is no requirement that plaintiff must know the full extent of her injuries before the applicable statute of limitations begins to run. Clay v. Kuhl, 189 Ill. 2d 603, 727 N.E. 2d 217 (2000).

Plaintiff in Clay was born in 1964, sexually abused on hundreds of ocassions in 1972 and 1973, and filed suit against Kuhl and his religious order in 1996. Plaintiff alleged that it was not until 1994 that she first became aware that Kuhl’s misconduct caused her injuries.

The defendants moved to dismiss complaint pursuant to 735 ILCS 5/2-619(a)(5), arguing that the time for filing suit expired on March 31, 1984, when she turned 20 years old. Illinois law allows minors to bring suit within two years of reaching majority; 18 years old being majority in Illinois, 735 ILCS 5/13-211. The trial court granted defendants’ motion to dismiss. Plaintiff appealed and Illinois Appellate Court reversed the dismissal, Clay v. Kuhl, 301 Ill. App. 3d 694, 704 N.E. 2d 875. The Illinois Supreme Court granted leave to appeal and reversed the Appellate Court and affirmed the trial court’s dismissal.

In arguments before the Illinois Supreme Court plaintiff contended that application of the discovery rule is necessary because plaintiff did not realize the full extent of her injuries until well after her 20th birthday. The discovery rule states that a party’s cause of action accrues when the party knows or reasonably should know of an injury and that the injury was wrongfully caused. Knox College v. Celotex Corp., 88 Ill. 2d 407, 430 N.E. 2d 976 (1981).
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