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Summary of Current Law: Indiana's general statute of limitations requires that any actions for injuries to the person must be filed within 2 years of the time when the cause of action accrues. Illinois Code 34-11-2-4
If a victim is under a "legal disability," the claim must be brought within 2 years of removal of the disability. Illinois Code 34-11-6-1
Indiana Code § 34-1-2-5 bars suits based on injuries that occurred in childhood unless brought within two years of the child reaching age eighteen.
In Fager v. Hundt, 610 N.E.2d 246 (Ind. 1993), the Indiana Supreme Court applied the doctrine of fraudulent concealment to allow the claim of a victim (against her parents) whose memory had been repressed memory claim. The court rejected a discovery-type analysis (that the statute of limitations should start to run when the victim discovers the abuse or realizes that she has a cause of action.)
The Supreme Court clarified the Fager ruling in Doe v. Shults-Lewis Child & Family Services, 718 N.E.2d 738 (Ind. 1999) and articulated the criteria under which a victim could could extend the statute of limitations under a fraudulent concealment theory:
[W]hen an adult plaintiff asserts a claim for tortious conduct committed against him or her as a child and brings an action beyond the statute of limitations period against a defendant who is not a parent, Fager and Indiana law, properly construed, require plaintiff to: 1) show his or her parent(s) did not know of the tortious conduct, or the parent(s) knew of the tortious conduct and colluded to conceal the tortious conduct; 2) prove the tortious act alleged; 3) show that the defendant, through his own actions, breached a duty to inform or engaged in wrongful conduct which prevented the plaintiff from discovering the cause of action within the statutory period, see Fager, 610 N.E.2d at 251, 253; 4) provide expert opinion evidence which supports the validity of the phenomenon of repressed memory and opines that plaintiff actually repressed memory of the abuse, see id. at 252; and, 5) show that the plaintiff exercised due diligence in commencing her action after the equitable grounds ceased to operate (i.e., recovered her memories), see id. at 251, and therefore brought the claim within a reasonable time after recovering memories of the events.
Doe v. Shults-Lewis, 718 N.E.2d at 746.
The Federal Court for the Southern District of Indiana aptly summed up the state of the law in Indiana:
[T]he court [in Fager] held that Indiana generally does not allow a plaintiff to sue for acts suffered during childhood and only later remembered, after the statute of limitations has run. In Indiana, repressed memory is not a disability tolling a statute of limitations. The Indiana court found that the "discovery rule"---which in areas such as product liability and medical malpractice law allows a plaintiff to sue years after the wrongful act if the injury only recently has become manifest---is usually not appropriate to wrongs against children because parents have an obligation to discover the wrongs and seek redress. As noted, Fager would impute knowledge of sexual abuse to [plaintiffs] parents and have the cause of action accrue in the mid-1970's.
Ernstes v. Warner, 860 F. Supp. 1338 (S.D.Ind.1994)(fn2).
The case of Tucker v. Roman Catholic Diocese of Lafayette 2005 N.E.2d Slip (2005-710) illustrates how difficult it is bring a civil claim for childhood sexual abuse in the absence of a special statute of limitations
Resources:
Indiana Code (IC)
Indiana Coalition Against Sexual Assault
Revised 08/26/2007. Copyright Susan K. Smith
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