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JOHNSON v. JOHNSON

June 13, 1991

DEBORAH JOHNSON, Plaintiff,
v.
WILLIAM LEO JOHNSON and JOSEPHINE JOHNSON, Defendants


Paul E. Plunkett, United States District Judge.


The opinion of the court was delivered by: PLUNKETT

PAUL E. PLUNKETT, UNITED STATES DISTRICT JUDGE.

 The plaintiff, Deborah Johnson, who was born in 1952, filed a complaint in 1988, alleging that between 1955 and 1968 her father, William Johnson, sexually abused her. She requests damages under several tort theories for injuries sustained as a result of her father's alleged abuse and of her mother's failure to protect her from such alleged abuse. *fn1" This matter is before us pursuant to our diversity jurisdiction, and the substantive law of Illinois governs the case.

 On October 6, 1988, we denied summary judgment to the defendants, who argued that the matter was time-barred inasmuch as the Illinois statute of limitations for personal injury actions is two years and the complaint was brought twenty years after the alleged abuse had stopped. The question was complicated, however, by the fact that Deborah Johnson maintained (and continues to maintain) that she had no memory whatsoever of the alleged abuse until she embarked on psychotherapy in 1987. She has produced an affidavit by her psychotherapist, Elizabeth E. Raymer, M.A., M.F.C.C., diagnosing Ms. Johnson as suffering from Multiple Personality Disorder. Plaintiff's Response, Raymer Aff., Exh. B, para. 4 at 2. Ms. Johnson dates her recollection of the abuse from March 16, 1987.

 Because Illinois had not at that time addressed a situation such as this where an adult incest victim has no conscious memory of the abuse until after the statutory tolling provision has expired, we dealt at some length with the approaches taken by other jurisdictions. We concluded that Illinois would use a discovery rule in a case such as this one. Johnson v. Johnson, 701 F. Supp. 1363, (N.D. Ill. 1988). Because there was a genuine dispute of fact regarding when the plaintiff knew or should have known of her injury and its cause, we denied the defendant's motion for summary judgment.

 On January 1, 1991, the Illinois Code of Civil Procedure was amended by adding § 13-202.2, which addresses the precise question that we considered earlier:

 
13-202.2. Childhood sexual abuse.
 
(a) In this Section:
 
'Childhood sexual abuse' means an act of sexual abuse that occurs when the person abused is under 18 years of age. 'Sexual abuse' includes but is not limited to sexual conduct and sexual penetration as defined in Section 12-12 of the Criminal Code of 1961.
 
(b) An action for damages for personal injury based on childhood sexual abuse must be commenced within 2 years of the date the person abused discovers or through the use of reasonable diligence should discover that the act of childhood sexual abuse occurred and that the injury was caused by the childhood sexual abuse, but in no event may an action for personal injury based on childhood sexual abuse be commenced more than 12 years after the date on which the person abused attains the age of 18 years.
 
(c) If the injury is caused by 2 or more acts of childhood sexual abuse that are part of a continuing series of acts of childhood sexual abuse by the same abuser, then the discovery period under subsection (b) shall be computed from the date the person abused discovers or through the use of reasonable diligence should discover (i) that the last act of childhood sexual abuse in the continuing series occurred and (ii) that the injury was caused by any act of childhood sexual abuse in the continuing series.
 
(d) The limitation periods under subsection (b) do not begin to run before the person abused attains the age of 18 years; and, if at the time the person abused attains the age of 18 years he or she is under other legal disability, the limitation periods under subsection (b) do not begin to run until the removal of the disability.
 
(e) This Section applies to actions pending on the effective date of this amendatory act of 1990 as well as to actions commenced on or after that date.

 P.A. 82-280, § 13-202.2, added by P.A. 86-1346, § 1, eff. Jan. 1, 1991. The parties do not dispute that ...


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