Appeal from the Circuit Court of Lake County. No. 94--L--100. Honorable Bernard E. Drew Jr., Judge, Presiding.
Released for Publication May 2, 1997.
The Honorable Justice Hutchinson delivered the opinion of the court. McLAREN and Doyle, JJ., concur.
The opinion of the court was delivered by: Hutchinson
JUSTICE HUTCHINSON delivered the opinion of the court:
In January 1994 plaintiffs, Jane Doe and her parents, John Doe and Mary Doe, filed a complaint against defendants, Montessori School of Lake Forest (Montessori School), Anne Gadon, Kay Guerin, Lissa Hektor, Kristine Thorsen, Board Members of the Montessori School of Lake Forest (Board Members), and American Montessori Society, Inc., resulting from an alleged contact of a sexual nature committed against Jane Doe when she was approximately two and one-half years of age. The trial court granted defendants' motion to dismiss with prejudice, and plaintiffs timely appealed. We reverse and remand.
The relevant pleading is the third amended complaint. In April 1995 plaintiffs filed a third amended complaint, consisting of 13 counts against defendants. Count I alleged negligence on behalf of plaintiff Jane Doe against defendant Montessori School. Count II alleged an "intentional tort" on behalf of plaintiff Jane Doe against defendant Gadon. Plaintiffs alleged in this count, in relevant part:
"That on the date and place aforesaid the Defendant, ANNE M. GADON, Individually and as agent, servant and employee of the MONTESSORI SCHOOL OF LAKE FOREST, was guilty of one or more or all of the following extreme and outrageous intentional acts, with malice aforethought, and/or with intent to harm the minor Plaintiff and/or to fulfill her own sexual stimulation and/or gratification, in that she caused contact, unwanted by the minor Plaintiff, to be made between her hands and/or fingers and the genitals, and other portions of the person of the minor Plaintiff and restricting the minor Plaintiff's freedom of movement of her person in so doing."
Counts III, IV, and V alleged negligence on behalf of plaintiff Jane Doe against defendants. Count VI alleged negligence on behalf of plaintiffs John Doe and Mary Doe against defendant Montessori School for negligent or intentional infliction of emotional distress. Count VII alleged an "intentional tort" on behalf of plaintiffs John Doe and Mary Doe against Gadon. Counts VIII, IX, and XI alleged negligence on behalf of plaintiffs John Doe and Mary Doe against defendants. Count X alleged an "intentional tort" on behalf of plaintiffs John Doe and Mary Doe against defendant Hektor for intentionally failing to report the alleged incident between defendant Gadon and plaintiff Jane Doe, as well as fraudulent concealment and conspiracy to conceal. Counts XII and XIII added American Montessori Society, Inc., as a new defendant, but it is not a party to this appeal.
On April 28, 1995, the first in a long and tortured series of motions was filed. Over the next several months, plaintiffs' complaint was attacked pursuant to section 2--619(a)(9) of the Civil Practice Law (735 ILCS 5/2--619(a)(9) (West 1994)), section 2--615 of the Civil Practice Law (735 ILCS 5/2--615 (West 1994)), and Supreme Court Rule 103(b) (134 Ill. 2d R. 103(b)). Motions for sanctions were filed, alleging discovery violations pursuant to Supreme Court Rules 215 and 219(c) (Official Reports Advance Sheet No. 20 (September 27, 1995), Rs. 215, 219(c), eff. January 1, 1996). Furthermore, each set of motions was accompanied by or followed by memoranda briefing the issues raised.
In September 1995 plaintiffs filed their response to defendants' motion for sanctions. Plaintiffs assert in their response that defendants had not established a good-faith showing for a defense psychological examination of plaintiff Jane Doe. Plaintiffs further contend that a psychological examination would pose a significant and undue risk of harm to plaintiff Jane Doe. Their response also states that plaintiff Jane Doe has no "articulable present recollection of *** attending Montessori School ***, let alone the incident itself." They also contend that plaintiff Jane Doe should not be subjected to a discovery deposition because of her tender age. Plaintiffs attached an affidavit of Daniel Woloszyn, a licensed clinical neuropsychologist. Woloszyn opined that a psychological examination of plaintiff Jane Doe would pose a significant risk of harm because the examination, "in the absence of any current memory of the event, would reasonably trigger emotional trauma and also a likelihood of triggering repressed memory syndrome."
Defendants Hektor, the Montessori School, and Gadon filed replies to plaintiffs' response to the motions for sanctions. In her reply memorandum, defendant Gadon further asserts, for the first time, that plaintiffs' cause of action had not accrued. Applying the discovery rule of the childhood sexual abuse section of the Limitations Act (735 ILCS 5/13--202.2 (West 1994)), Gadon argues plaintiff Jane Doe is not yet aware that she had been injured, and, therefore, the cause of action will accrue only when she recovers her memory of the event. Only then can it be determined whether her action was within the limitations period set forth. Thus, Gadon claims, plaintiff Jane Doe has no cause of action at this time, but should be allowed to renew her claim should she discover she was sexually molested.
In October 1995 defendant Guerin filed her reply to plaintiffs' response to defendants' motions for sanctions. Guerin argues that plaintiffs' damages are speculative, plaintiff Jane Doe's cause of action is not ripe, and plaintiffs' and their affiant, Woloszyn, "overlook the fact that it would be beneficial rather than harmful, for *** [plaintiff Jane Doe] to recall and deal with the emotional trauma that may have been caused if the alleged incident occurred."
In November 1995 plaintiffs filed their surresponse to defendants' combined replies. Plaintiffs maintain that their cause of action was ripe on the day the act allegedly occurred because of the principle that the discovery by a child's parent, even absent actual cognition or memory by the child, shall be imputed to the child and shall constitute the accrual of a cause of action. Plaintiffs also argue that the childhood sexual abuse section of the Limitations Act (735 ILCS 5/13--202.2 (West 1994)) does not prohibit bringing a cause of action contemporaneously with the knowledge of an act of abuse. They also argue that, as a matter of law, injury is presumed due to the heinous nature of sexual molestation. Furthermore, plaintiffs claim that John and Mary Doe's causes of action exist independently of Jane Doe's claim and that the trial court should employ a balancing test to determine whether plaintiff Jane Doe should be subjected to a defense psychological examination.
On December 14, 1995, defendant Gadon filed a surreply to plaintiffs' surresponse to defendants' combined replies for their motions for sanctions. In her surreply, defendant Gadon argues that (1) the cause of action has not accrued for plaintiff Jane Doe; (2) injury to plaintiff Jane Doe from the alleged molestation cannot be presumed; and (3) should plaintiff Jane Doe's cause of action fail, then her parents, John and Mary Doe, have no independent cause of action. On December 18, 1995, defendants Guerin, Hektor, Thorsen, Gadon, and the Montessori School filed essentially the same joint surreply.
At a hearing held on January 3, 1996, the trial court granted defendant American Montessori Society, Inc., leave to adopt the arguments of the other defendants. Following that, the trial court conducted a hearing on a motion to dismiss plaintiffs' third amended complaint pursuant to section 2--619 (735 ILCS 5/2--619 (West 1994)). Defendants claimed that the suit was barred because plaintiff Jane Doe's cause of action had not yet accrued and that the plaintiff parents' individual causes of action had similarly not accrued on the basis of their claims being derivative of plaintiff Jane Doe's claims. At the conclusion of that hearing, the trial court entered certain findings on the record: that plaintiff Jane Doe's cause of action was not yet ripe because she had not "broken through" her repressed memory; that the act of child molestation did not warrant a finding of presumed damages on the basis of said damages being speculative; and that plaintiffs John Doe's and Mary Doe's independent causes of action for intentional infliction of emotional distress, civil conspiracy, and fraudulent ...