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09/11/97 M.E.H. ET AL. v. L.H. ET AL.

September 11, 1997

M.E.H. ET AL., APPELLANTS,
v.
L.H. ET AL., APPELLEES.



The Honorable Justice Harrison delivered the opinion of the court. Justice Nickels took no part in the consideration or decision of this case. Justice Heiple, specially concurring.

The opinion of the court was delivered by: Harrison

The Honorable Justice HARRISON delivered the opinion of the court:

The issue in this case is whether a tort action for child sexual abuse is barred by a statute of repose that was not in effect when the abuse occurred and was repealed before the action was filed. The circuit court of Ogle County determined that the statute of repose did bar the plaintiffs' action and granted the defendants' motion to dismiss under section 2-619(a)(5) of the Code of Civil Procedure (735 ILCS 5/2-619(a)(5) (West 1994)). The appellate court affirmed. 283 Ill. App. 3d 241, 669 N.E.2d 1228, 218 Ill. Dec. 702. We allowed the plaintiffs' petition for leave to appeal (155 Ill. 2d R. 315) and now affirm.

The basic facts are these. On October 14, 1994, plaintiffs, M.E.H. and D.M.H., filed a tort action against their parents, L.H. (their father) and G.H. (their mother), to recover damages for injuries they allegedly sustained when they were children. According to the complaint, plaintiffs sought recovery from L.H. on the grounds that he had subjected both of the women to forced sexual relations beginning when each was four and continuing through high school. Plaintiffs sought recovery from G.H. on the grounds that she had failed to protect them from L.H.'s abuse.

By the time they filed their complaint, both plaintiffs were well beyond their high school years. M.E.H. was 44 years old and D.M.H. was 45. To explain why they had waited so long to sue, plaintiffs alleged that the trauma they experienced caused them to repress their memories of the abuse, prevented them from understanding the impact of the assaults, and impaired them to such a degree that they were incapable of comprehending or asserting their rights more promptly. According to the complaint, plaintiffs were able to recall the abuse only after receiving psychological therapy, and they acted with due diligence by filing suit within two years of discovering the abuse and the injuries it caused.

At the time plaintiffs filed their complaint, section 13-202.2(b) of the Code of Civil Procedure (735 ILCS 5/13-202.2(b) (West 1994)) provided that actions

"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."

Defendants moved to dismiss plaintiffs' complaint pursuant to section 2-619(a)(5) of the Code of Civil Procedure (735 ILCS 5/2-619(a)(5) (West 1994)) on the grounds that plaintiffs' claims against L.H. were time-barred under this statute because plaintiffs had actually discovered the abuse more than two years before filing suit. In support of this contention, defendants submitted affidavits from various witnesses, including family members, who stated that plaintiffs had spoken of their abuse during events in July and August of 1992. Defendants also proffered an affidavit of their own which stated that D.M.H. had confronted them with the accusations of childhood sexual abuse in a letter they received more than two years before suit was filed.

In response to defendants' motion, plaintiffs disputed defendants' factual claims. In addition, they contended that their action was timely by virtue of section 13-202.2(c) of the Code of Civil Procedure (735 ILCS 5/13-202.2(c) (West 1994)), which provides:

"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."

Plaintiffs argued that their action was timely under this provision because they were subjected to multiple acts of childhood sexual abuse over many years that were part of a continuing series of acts of childhood sexual abuse by the same abuser, their injuries were caused by acts of childhood sexual abuse that were part of this continuing series, and at the time they filed suit they were still in the process of discovering, with the aid of therapy, new incidents of abuse that had taken place.

Following a hearing, the circuit court rejected plaintiffs' position and granted defendants' motion to dismiss. The court held that because plaintiffs did not allege that G.H., their mother, had actually committed any of the acts of childhood sexual abuse, plaintiffs' claims against her were governed by the general personal injury limitations period set forth in section 13-202 of the Code of Civil Procedure (735 ILCS 5/13-202 (West 1994)) rather than by the specific childhood sexual abuse limitations period contained in section 13-202.2. Applying the general personal injury limitations period, the court concluded that plaintiffs' claims against their mother were untimely.

With respect to plaintiffs' claims against L.H., the circuit court noted that the prior version of section 13-202.2 of the Code of Civil Procedure (735 ILCS 5/13-202.2 (West 1992)) governing personal injury actions based on childhood sexual abuse contained a 12-year period of repose. Under that version of the law, litigants were precluded from commencing an action for personal injuries based on childhood sexual abuse more than 12 years after the date on which the person abused attained the age of 18 years. 735 ILCS 5/13-202.2(b) (West 1992). Because the plaintiffs here were both in their forties, their claims would be time-barred by this provision.

Although the repose provision was not in effect when the abuse allegedly took place and was deleted from the law before plaintiffs actually filed suit, the circuit court reasoned: (1) that while the repose period was still in effect, it operated to extinguish plaintiffs' right to seek recovery from L.H., (2) that L.H.'s right to plead the period of repose as a defense was vested and could not be destroyed by the subsequent legislative change, and (3) that section 13-202.2(e) of the new law (735 ILCS 5/13-202.2(e) (West 1994)), which specifies that the changes made by the law are ...


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