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04/07/94 SUSAN E. HERTEL v. KEVIN B. SULLIVAN AND

April 7, 1994

SUSAN E. HERTEL, PLAINTIFF-APPELLANT,
v.
KEVIN B. SULLIVAN AND THE ROMAN CATHOLIC DIOCESE OF SPRINGFIELD, ILLINOIS, A TRUST, BISHOP DANIEL RYAN, SUCCESSOR TRUSTEE, DEFENDANTS-APPELLEES.



Appeal from Circuit Court of Sangamon County. No. 92L276. Honorable Stuart H. Shiffman, Judge Presiding.

As Corrected April 14, 1994. Second Correction May 9, 1994. Released for Publication June 1, 1994. Petition for Leave to Appeal Denied October 6, 1994.

Honorable Robert W. Cook, J., Honorable John T. McCULLOUGH, P.j., Honorable Carl A. Lund, J.

The opinion of the court was delivered by: Cook

JUSTICE COOK delivered the opinion of the court:

Defendants moved to dismiss this complaint because it was not filed within the two-year personal injury statute of limitations. (735 ILCS 5/13-202 (West 1992).) The trial court granted the motions and dismissed the complaint. Plaintiff appeals. We affirm.

Plaintiff Susan E. Hertel alleged in her proposed first-amended complaint that defendant Kevin B. Sullivan was a Catholic priest employed by defendant, the Roman Catholic Diocese of Springfield, and that he was pastor of Our Lady of Lourdes Church in Decatur. Plaintiff, who attended Our Lady of Lourdes, began counseling with Sullivan in 1982 for a family problem. Plaintiff and Sullivan allegedly began to engage in sexual conduct in January 1983, then sexual intercourse in September 1983. In August 1985 plaintiff told Sullivan she thought she was pregnant, and at his request arranged for a dilation and curettage. Sullivan began to ignore plaintiff at church and treat her differently from other parishioners, and as a result plaintiff began to suffer from severe depression. In May 1986 plaintiff reported all this to the bishop, who allegedly refused to intervene.

The complaint continued that on July 25, 1986, following an extremely demeaning telephone conversation with Sullivan, plaintiff collapsed at her apartment and was not discovered until several days later. Plaintiff's circulation was affected, resulting in the eventualamputation of her left leg and part of her right foot (the final operation taking place in 1991). Plaintiff and Sullivan engaged in sexual relations until May 1988, but from 1983 to 1992 Sullivan treated plaintiff differently than he treated other parishioners, refusing to see her, refusing to counsel her, and hanging up on her or refusing her calls. Sullivan refused to administer the sacraments of the church to plaintiff and refused to allow her to participate in church functions. According to the complaint, Sullivan denied any relationship with plaintiff and claimed she was "crazy." When plaintiff told Sullivan she was contemplating suicide he allegedly told her that was not his problem, that he could not keep her from committing suicide, and "it's your problem, do what you want to do."

Plaintiff alleged she was emotionally and financially dependent on Sullivan, who controlled her every thought and action. Plaintiff alleged she did not realize the actions of Sullivan and the Diocese were wrongful until July 1991, when she began therapy with her present psychologist (Daniel D. Hocking), and it was not until 1992 that she was emotionally capable of understanding her victimization and taking meaningful action for her own protection. Plaintiff's complaint alleged Sullivan was guilty of negligence, negligent infliction of emotional distress, and intentional infliction of emotional distress. Plaintiff's injuries were said to include emotional distress and the amputation and related consequences. The diocese was alleged to be vicariously liable for Sullivan's conduct, and itself negligent in failing to protect plaintiff from Sullivan.

Additional facts were disclosed in plaintiff's deposition. Plaintiff was 29 years old in 1983, when the relationship with Sullivan allegedly began. Sullivan suggested that plaintiff receive professional psychological help, first making that suggestion in 1983. At that time, Sullivan made an appointment for plaintiff with a psychologist but told plaintiff not to talk to the psychologist about their relationship. Plaintiff's best friend is Joanne Pittz, whose husband is a former priest. Plaintiff discussed the relationship between herself and Sullivan with the Pittzes on many occasions beginning in February 1985. Plaintiff was hospitalized for depression in March 1985. At that time she told various persons, including her psychologist and several psychiatrists, about the alleged relationship. At that time plaintiff believed her depression was connected with the relationship. When she collapsed July 27, 1986, plaintiff had taken an overdose of prescribed medication. Again at that time she believed that Sullivan was responsible for her depression and her continuing dependency upon him. Sullivan did nothing to encourage a relationship after 1988. In a subsequent affidavit plaintiff stated her deposition answerswere based on what she knows now, since her therapy with Mr. Hocking, and not what she knew prior to that time. "Simply put, at the time of the events, I neither considered the conduct wrongful nor did I believe that anything the defendants did or did not do was the cause of my emotional distress and physical ailments."

In most cases the question when an injured party knows or reasonably should have known both of his injury and that it was wrongfully caused is one of fact. Where it is apparent from the undisputed facts, however, that only one Conclusion can be drawn, the question becomes one for the court. ( Witherell v. Weimer (1981), 85 Ill. 2d 146, 156, 421 N.E.2d 869, 874, 52 Ill. Dec. 6; McCormick v. Uppuluri (1993), 250 Ill. App. 3d 386, 390, 621 N.E.2d 57, 60, 190 Ill. Dec. 188; Betts v. Manville Personal Injury Settlement Trust (1992), 225 Ill. App. 3d 882, 896, 588 N.E.2d 1193, 1202, 167 Ill. Dec. 1063.) The purpose of a section 2-619 motion to dismiss is to dispose of a case on the basis of issues of law or easily proved issues of fact. Section 2-619 of the Code of Civil Procedure (Code) specifically lists the statute of limitations as a grounds for dismissal. The grounds for dismissal may be established by affidavits or depositions. ( Wood v. Village of Grayslake (1992), 229 Ill. App. 3d 343, 348, 593 N.E.2d 132, 136, 170 Ill. Dec. 590.) However, the court may not decide a disputed question of fact if a jury demand is filed, as it was here. 735 ILCS 5/2-619 (West 1992).

Sexual intercourse between consenting adults is generally not tortious conduct. (See 740 ILCS 15/1 (West 1992) (public policy to leave seduction actions to the criminal law).) Nor has negligent infliction of emotional distress generally been considered actionable. (See Public Finance Corp. v. Davis (1976), 66 Ill. 2d 85, 89-90, 360 N.E.2d 765, 767, 4 Ill. Dec. 652.) However, a complaint was recently held to state a cause of action when it alleged that plaintiff suffered emotional distress. That complaint alleged that plaintiff went to a psychologist for counseling and the psychologist negligently violated standards of professional due care by having sexual relations with plaintiff during the course of her treatment and by failing to properly deal with the psychotherapeutic phenomenon of "transference." ( Corgan v. Muehling (1991), 143 Ill. 2d 296, 307, 574 N.E.2d 602, 606-07, 158 Ill. Dec. 489.) We reject plaintiff's suggestion that the duties of a priest to his parishioner or of a minister to his congregation should be equated with the duties of a psychologist to his patient. A priest or minister is not required to possess and apply the knowledge and use the skill and care ordinarily used by a reasonably well-qualified psychologist.

Plaintiff goes on to analogize this case to Cunningham v. Huffman (1993), 154 Ill. 2d 398, 609 N.E.2d 321, 182 Ill. Dec. 18, where the supreme court held the four-year medical malpractice statute of repose (Ill. Rev. Stat. 1989, ch. 110, par. 13-212) was tolled during the period of an ongoing course of continuous negligent medical treatment. The court held the statute of repose was tolled even though the statute's purpose was to curtail the "long tail" exposure to medical malpractice claims brought about by the advent of the discovery rule, and statutes of repose generally operate despite a potential plaintiff's lack of knowledge. ( Cunningham, 154 Ill. 2d at 406, 609 N.E.2d at 325.) Otherwise patients who, after treatment for many years, "discovered that they were gravely injured" by that treatment could only seek recovery for the damage caused in the last four years. ( Cunningham, 154 Ill. 2d at 405, 609 N.E.2d at 325.) Previous decisions of this court had held that the continuing course of treatment need not be negligent. Daly v. Carmean (1991), 210 Ill. App. 3d 19, 29, 568 N.E.2d 955, 961, 154 Ill. Dec. 734 (statute of limitations and statute of repose); Neaterour v. Holt (1989), 188 Ill. App. 3d 741, 747, 544 N.E.2d 846, 851, 136 Ill. Dec. 160 (statute of repose).

The continuing course of (negligent) treatment rule is a device to extend a statute of limitations or toll the running of a statute of repose. One reason for employing such a device in medical malpractice cases is that a patient is often forced to rely upon what he is told by the physician or surgeon. The Restatement suggests the discovery rule is a more direct method of addressing the problem (Restatement (Second) of Torts § 899, Comment e, at 444 (1979)), but the discovery rule is not available with statutes of repose, which in fact were enacted to avoid the discovery rule. We see no reason to expand the Cunningham rule to cases involving priests or ministers. In our view such cases, which involve the two-year statute of limitations and not the statute of repose considered in Cunningham, are adequately dealt with by considering the application of the discovery rule. A church member may choose to rely upon what he is told by a priest or minister, but is not forced to rely upon such information.

More broadly, plaintiff cites Hyon Waste Management Services, Inc. v. City of Chicago (1991), 214 Ill. App. 3d 757, 763, 574 N.E.2d 129, 132, 158 Ill. Dec. 335, and argues that "when a tort consists of a continuing or repeated injury * * * the statute of limitations does not begin to run until the date of the last injury or when the tortious acts cease." In Hyon, however, the court found there was no such continuing injury. Instead there was a single alleged unlawful act followed by continued ill effects. In Hyon the city was alleged to have sealed an incinerator and thereby shut down a private business, without prior notice or hearing. (Cf. Restatement (Second) of Torts ยง 161, Comment b, at 289 (1965) (failure to remove from land a thing tortiously placed there constitutes a continuing trespass).) Plaintiff has not cited any Illinoisauthority which squarely holds the continuing tort rule should apply beyond nuisance or trespass cases, and we decline to apply such a rule as a matter of first ...


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