|
Table of Contents Connecticut's Statute of Limitations Should You Bring a Civil Claim?
We Are An Amazon.com Associates Site. Help to defray the costs of this page by entering the Amazon.com ordering site via this link.
|
Civil Remedies for Connecticut Connecticut's Statute of Limitations. Under Connecticut's special statute of limitations for victims of childhood sexual abuse or exploitation (Conn. Gen. Stats. 52-577d), survivors now have until the day before their 48th birthday to bring actions against the responsible party or parties. Victims are bringing actions seeking accountability as well as damages for the cost of past and future therapy, loss of childhood, failure to fulfill potential and the long-term emotional damage resulting from the abuse. It has been clearly established that the special statute is retroactive (i.e. applies to survivors who are now adults who were abused as children). Roberts v. Caton, 224 Conn. 483 (1993). The statute has also survived a constitutional challenge in Giordano v. Giordano, 39 Conn. App. 183, 664 A.2d 1136 (1995) wherein the Connecticut Appellate court held that the statute of limitations does not operate to deprive a perpetrator of due process. Can the Fraudulent Concealment Doctrine Suspend the Statute of Limitations? In a recent, much-publicized case, a victim over the age of 35 successfully sued a Roman Catholic diocese on the theory that the diocese "fraudulently concealed" the claim against the church. Although the doctrine of fraudulent concealment is a long-standing statutory exception in Connecticut, (Conn. Gen. Stat. 52-595), the requirements and burden of proof are quite stringent. In order to prevail, a plaintiff must prove by the "exacting standard of clear, precise, and unequivocal evidence" (1) that the defendant had actual knowledge of the facts necessary to establish the plaintiffs' cause of action; (2) that the defendant intentionally concealed the facts from the plaintiff, and (3) that defendant's concealment of the facts was the reason for the delay in filing suit. Bartone v. Robert L. Day Co., Inc., 232 Conn. 527, 533, 656 A.2d 221 (1995); Connell v. Colwell, 214 Conn. 242, 250-51, 571 A.2d 116 (1990). A plaintiff needs to show that the defendant's actions were directed to the very point of obtaining the delay in filing the lawsuit. Bound Brook Association v. Norwalk, 198 Conn. 660, 665, 504 A.2d 1047 (1986). In some instances, fraudulent concealment claims are dismissed prior to trial because the litigants cannot demonstrate the necessary evidence to keep the claims alive. In Martinelli v. Bridgeport Roman Catholic Diocese. No. 3:93 CV 1482, U.S.D.C. for the D. of Conn. (Arterton, J.), the Plaintiff successfully argued that the diocese concealed the cause of action for negligently supervising an employee because it covered up instances of known abuse by the priest. The case was tried and a substantial verdict was won for the Plaintiff. The verdict was then overturned by the Second Circuit Court of Appeals and remanded for a new trial on the ground that the judge gave faulty jury instructions on the fraudulent concealment issue. The case was settled on appeal. Shortly after the Martinelli trial, seven cases which had been brought for victims over the age of 35 against the same diocese on a fraudulent concealment theory were dismissed by a State court judge. Rosado, et al v. Bridgeport Roman Catholic Diocese Corporation, et al, 1997 WL 585779 (J.D. of Bridgeport, Sept. 15, 1996, Thim, J.) Judge Thim concluded that the plaintiffs could not proceed on the concealment theory as to the individual priests because they were aware of the acts of abuse that gave rise to the claims at the time the abuse occurred. As to church officials, Judge Thim reasoned that the plaintiffs could not prove that the officials were aware of the victims' claims before they reached the age of 35, or if they did, could not show that officials did anything more than merely keep silent. Judge Thim concluded that the Plaintiffs could not meet the strict requirements of the fraudulent concealment test and he dismissed all the claims by granting summary judgment in favor of the church. It is probably safe to conclude that in Connecticut, the doctrine of fraudulent concealment will not work to extend the statute for many victims over the age of 35. Actions Against Non-perpetrators. Connecticut courts have been applying the special statute of limitations to non-perpetrators (i.e. schools, employers, churches) based upon the United States District Courts decision in Almonte v. New York Medical College, 851 F. Supp. 34 (D. Conn. 1994) (Nevas, J.). Parents who have abused their children do not enjoy parental immunity for their actions and can be sued for damages. Henderson v. Wooley, 230 Conn. 472 (1994). One lower court has ruled that the spouse of an abuser does not enjoy the protection of parental immunity for acquiescing in abuse. Survivors Victimized as Adults. Adult victims have 2 years from the date the abuse ended to bring negligence claims against a perpetrator or third party. Claims for intentional actions, i.e. assault & battery or intentional infliction of emotional distress, can be brought within 3 years. It is important to bring claims within 2 years whenever possible because any insurance coverage available is most easily applied to negligent conduct. Although it seems contradictory, negligence claims against perpetrators and non-perpetrators are often important legal tools in the right setting. Abuse by Professionals. Adult victims who have been exploited by medical professionals (i.e., doctors, therapists and psychiatrists) also have a civil remedy. It is fairly well-established in Connecticut and elsewhere that mishandling of the "transference/counter -transference" phenomenon that arises in therapy is malpractice that is covered by insurance. St. Paul Fire & Marine Ins. Co. v. Shernow, 222 Conn. 823 (1992). Those claims should be brought within 2 years of the victim's discovery of the malpractice, but no more than 3 years from the date the last act constituting malpractice occurred. In some instances an ongoing physician/patient relationship can extend the time period. Some of the theories relating to therapist abuse are being argued on behalf of victims in other contexts. Security Cases. In some settings, adult victims may have remedies against property owners for failure to provide adequate security. For example, successful suits have been brought against parking lot and garage owners, hotel/motels, private owners of buildings open to the public and apartment building owners. Domestic Torts. In Connecticut, there is no spousal immunity and suits can been brought against spouses for physical, sexual and emotional abuse. "Interspousal" or "marital" tort claims can (and probably should be) brought simultaneously with divorce cases filed in the family relations division of the Superior Court. See Hutchings v. Hutchings, No. 054449S, J.D. of Litchfield (1993)(Dranginis, J.). Hutchings, decided by the state's chief family court judge, involved claims of spousal abuse. Judge Dranginis allowed the claims to be joined with the divorce case, citing the need for parties to come to closure on divorce and family disputes quickly. Discovery and the Waiver of Privacy. The new Federal Rules notwithstanding, in most civil cases there is no bar to the use of sexual history and other private information. Any person who files a civil case claiming physical or emotional damages waives the right to confidentiality of medical and other records that might have a bearing on her physical or emotional state. This is true in all civil claims, regardless of the type of injury. There is a broad basis for "discovery" (a general term used to describe pretrial disclosure of information and documents, either by written motions or deposition) in most states. The basis for discovery is broader than the basis for admissibility in court. Most states will allow discovery requests if the information requested is relevant or has the potential of leading the opposing party to potentially admissible evidence. Because posttraumatic stress disorder (PTSD) and similar disorders are commonly claimed by victims, evidence of any other stressors or trauma is subject to discovery. Sexual and personal history is usually considered relevant for discovery purposes, although it is sometimes possible to obtain protective orders to limit the scope of that discovery. Personal, educational and employment history is relevant for discovery purposes, as well as any diaries or writings of the victim. Some courts that allow broad pretrial discovery, however, may limit the type of evidence that can be heard by a jury. For instance, it is sometimes possible to obtain a ruling in advance of trial that evidence of consensual sexual relationships of the victim is not admissible. That argument can be made based on an analogy to criminal rape shield statutes as well as the common sense argument that consensual sexual relationships do not usually cause trauma and therefore are not relevant to the victim's emotional damages. Proponents of such motions can now point to the Federal Rues for authority. There is a big catch here, however. A significant part of damage in many victims are difficulties with sexuality and intimacy. It may be necessary to admit evidence of those problems and thereby "open the door" on the issue consensual sexual relationships in order to demonstrate the extent to which the victim is damaged.. Impact on Therapy. A survivor should also be aware that in a civil case, his or her therapy will no longer be totally confidential. The therapists' notes and records will be subject to disclosure in a civil suit, although their use will be limited to the parties and their attorneys and will only in rare instances be filed in the court file. A therapist is a witness to the impact of the abuse on the survivor and will probably be called upon to testify if suit is filed. If suit is contemplated, a therapist should carefully document all symptoms, history and disclosures that relate to a client's victimization. In recovered memory cases, a therapist should carefully document when memories are recovered, what is remembered and how it is remembered. If a suit is contemplated, records, journals, and documents should never be altered or destroyed. Hypnosis. If a civil claim is contemplated, survivors should be aware that the use of therapeutic hypnosis and non-traditional modes of therapy can be problematic in the context of a civil lawsuit and should be avoided. One court in Connecticut ruled that a victim could not testify because her recollection had been rendered unreliable by the past use of hypnosis for therapeutic purposes. Borawick v. Shay, 842 F. Supp. 1501 (D. Conn. 1994); aff'd 68 F.3d 597 (2d Cir. 1995). Hypnosis can also fuel a defense that the victim's recollection of the abuse are merely "false memories" suggested by the hypnotherapist. Experts continue to debate the controversy over whether memory can be "repressed," whether repressed memory can be recovered, and whether false memories can be implanted. Victim attorneys who pursue an aggressive strategy anticipating the false memory defense will help to level the litigation playing field on this issue. Protective Orders and Publicity. "Jane Doe" and "John Doe" fictional names can often be used by victims who bring lawsuits in the State and Federal courts in Connecticut. In some instances, it is also possible to get orders sealing the court file from the public. Under current court rules in the State and Federal courts in Connecticut, most evidentiary information (depositions, medical reports and other personal information) is not maintained in the court file except under special circumstances. Some survivors object to the use of Jane Doe protective orders because it is thought to further stigmatize victims. Some victims forego identity protection orders to prevent reciprocal "tit for tat" protection sought by the perpetrators. The media rarely picks up the filing of a suit on its own unless a high profile individual is involved; most publicity is generated by victims or their lawyers. Publicity can be avoided in most cases depending on the wishes of the victim. The question whether media publicity should be sought is a critical, involves competing goals and considerations, and should be discussed carefully between attorney and client. For many years the general rule was that media outlets had the policy of not publishing a victim's name unless the victim expressly requested it. That rule is changing and a growing number of news outlets will publish the name of a victim unless prevented by a court sealing order. Retaliatory Suits. Although many survivors fear retaliatory suits for defamation or vexatious litigation (the civil version of malicious prosecution), such suits are poor strategy on the part of a perpetrator and therefore exceedingly rare. However, a handful of high profile suits have been filed in other states against therapists who have been accused by alleged perpetrators of planting "false memories." Should You Bring a Civil Claim? Victim recourse litigation is not a panacea --there is no guarantee that a victim will obtain healing or closure by bringing litigation. Litigation can be prolonged, stressful and expensive. Any survivor who wishes to institute a civil claim should be well-established in supportive therapy before starting the action. It is not a good idea to start a lawsuit shortly after recovering memories of abuse or acknowledging the issue of abuse in your life. Cases that are based solely upon "her word against his" are difficult. Cases with some outside corroboration are more feasible. Outside corroboration can consist of other victim evidence, "constancy of accusation" evidence (other persons told around the time of or after the abuse, or a significant period of time prior to launching the claim), school and medical records which demonstrate problems that are typical of abuse, and a variety of circumstantial evidence that tends to support a victims claim. Corroboration can also be assisted by expert psychologists and psychiatrists who are qualified to evaluate a victim and her history in order to identify patterns of behavior and psychological and somatic (physical) complaints that are typical of victims of CSA. Recovered memory cases are the most difficult and must be carefully evaluated before a decision to institute suit is made. No case can be feasible unless the perpetrator is "lawsuit worthy." Theoretical cases with no hope of collecting damages are not handled well by our judicial system and only serve to further disappoint, invalidate and frustrate victims. Cases can be lost for legal reasons that have no bearing on the truth of the allegations or the merits of the claim. Lost cases only serve to further damage victims. Lost cases also send the wrong message to perpetrators. For these reasons most lawyers carefully screen victim recourse cases and only accept those with a good chance of success. When those cases are identified and successful claims are brought, victims can benefit from making their perpetrators financially and morally accountable. Other Remedies for Victims
|
