Doe v. Boy Scouts of America Corp. ( 2016 )

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DOE v. BOY SCOUTS OF AMERICA CORP.—FIRST CONCURRENCE
AND DISSENT
ZARELLA, J., with whom ESPINOSA and ROBINSON,
Js., join, concurring in part and dissenting in part. I agree
with and join parts I and VI1 of the majority opinion2 and
agree with the majority’s determination not to reach the
issue of whether the award of damages was excessive. I
express no opinion with respect to parts II, III and IV
of the majority opinion.3 I write separately because I
disagree with the majority’s conclusion in part V of its
opinion that the thirty year limitation period prescribed
by General Statutes § 52-577d applies to an action that
sounds in negligence and recklessness.
The plain language of § 52-577d compels the conclu-
sion that it applies only when an action is premised on
intentional misconduct. In a case alleging negligence
or recklessness, such as the present case, the two year
limitation period in General Statutes § 52-5844 applies.
Not only does the plain language of § 52-577d support
this construction, but the statutory scheme pertaining
to statutes of limitations, the relevant legislative history,
and case law from other jurisdictions also indicate that
§ 52-577d does not apply to actions alleging negligence
or recklessness. I would thus conclude that, because the
two year limitation period set forth in § 52-584 expired
before the plaintiff commenced the present action, the
matter is time barred.5
Section 52-577d provides in relevant part: ‘‘Notwith-
standing the provisions of section 52-577, no action to
recover damages for personal injury to a minor, includ-
ing emotional distress, caused by sexual abuse . . .
may be brought by such person later than thirty years
from the date such person attains the age of majority.’’
The majority acknowledges that ‘‘§ 52-577d expressly
provides that [General Statutes] § 52-577, which applies
to intentional torts, does not apply to claims involving
personal injury to a minor caused by sexual abuse,
[whereas] § 52-577d makes no mention of § 52-584,
which applies to claims of personal injury arising from
negligence or recklessness . . . .’’ Text accompanying
footnote 20 of the majority opinion. The majority con-
cludes, however, that the omission of § 52-584 ‘‘tends
to create some ambiguity concerning the statute’s scope
. . . .’’ (Internal quotation marks omitted.) Part V of
the majority opinion, quoting Doe v. Indian Mountain
School, Inc., 921 F. Supp. 82, 83 (D. Conn. 1995). In my
view, the legislature’s deliberate omission of § 52-584
demonstrates its intent to specify that § 52-577d applies
to intentional conduct only. The plain language indi-
cates that the legislature recognized a conflict between
§§ 52-577 and 52-577d, making it necessary to clarify
that an action for injuries caused by sexual abuse is
subject to the thirty year statute of limitations in § 52-
577d. Perceiving no conflict between §§ 52-584 and 52-
577d, however, the legislature saw no need to mention
§ 52-584. In other words, because § 52-577d applies to
intentional conduct only, it would have been redundant
to clarify that it does not apply to claims alleging negli-
gence or recklessness. If the legislature had intended
for these claims to be subject to § 52-577d, it would have
provided, ‘‘[n]otwithstanding the provisions of sections
52-577 and 52-584’’ in § 52-577d. The fact that § 52-577
is a ‘‘catchall’’ provision that applies to intentional torts
and other torts not specifically mentioned in other stat-
utes does not negate the fact that the legislature, in
drafting § 52-577d, perceived and resolved a conflict
between §§ 52-577 and 52-577d, and perceived no such
conflict between §§ 52-577d and 52-584.
Despite the deliberate omission of any reference to
§ 52-584 in § 52-577d, the majority concludes that negli-
gence and recklessness claims are subject to the thirty
year statute of limitations because ‘‘[t]he all-encom-
passing language of § 52-577d providing that ‘no action
to recover damages for personal injury to a minor . . .
caused by sexual abuse’ . . . supports an interpreta-
tion that negligence and recklessness claims would also
be subject to the thirty year statute of limitations.’’
(Emphasis in original.) Part V of the majority opinion.
The only way to arrive at this conclusion, however, is
to disregard entirely the phrase ‘‘[n]otwithstanding the
provisions of § 52-577’’ in § 52-577d. Moreover, this con-
clusion creates a conflict between §§ 52-577d and 52-
584, when no such conflict exists under the plain statu-
tory language. When § 52-577d is construed as written,
it applies only when an action is predicated on conduct
that amounts to sexual abuse, sexual assault or sexual
exploitation, all of which require intentional conduct.
Under this straightforward approach, there is no con-
flict with § 52-584, which applies only when an action is
predicated on negligent or reckless conduct. Moreover,
this approach is consistent with our long-standing his-
tory of construing statutes to avoid conflict when possi-
ble. E.g., Tomlinson v. Tomlinson, 305 Conn. 539, 552,
46 A.3d 112 (2012). The majority’s contrary approach
not only ignores the legislature’s resolution of the con-
flict between §§ 52-577d and 52-577, but creates a con-
flict between §§ 52-577d and 52-584 where the legisla-
ture saw none.
Additional language in § 52-577d compels the conclu-
sion that it does not apply to actions sounding in negli-
gence or recklessness. Section 52-577d provides that it
applies to actions for damages ‘‘caused by’’ sexual abuse
or sexual assault. The use of the narrow phrase ‘‘caused
by,’’ rather than more expansive language, indicates
that § 52-577d applies only when the action arises from
the perpetrator’s intentional act that caused the sexual
abuse. See State ex rel. Heart of America Council v.
McKenzie, 484 S.W.3d 320, 327 (Mo. 2016) (construing
statute of limitations for ‘‘ ‘any action to recover dam-
ages from injury . . . caused by childhood sexual
abuse’ ’’ and rejecting argument that, because statute
did not expressly exclude claims against nonperpetra-
tors, such claims could be brought); see also Walker v.
Barrett, 650 F.3d 1198, 1209 (8th Cir. 2011) (rejecting
argument that claim could be brought against nonperpe-
trator when statute of limitations governing ‘‘ ‘[a]ny
action to recover damages from injury . . . caused by
childhood sexual abuse,’ ’’ by its terms, suggested that
nonperpetrator could not be held liable).
The majority offers no explanation for how the phrase
‘‘caused by’’ includes negligent or reckless conduct but
concludes instead that, ‘‘[i]f the legislature had intended
to limit the application of § 52-577d to claims against
perpetrators . . . it could have simply said so.’’ Text
accompanying footnote 21 of the majority opinion. In
my view, the legislature did say so by indicating that
§ 52-577d applies to injuries ‘‘caused by’’ sexual assault
and by expressly incorporating a reference to § 52-577
while omitting any reference to § 52-584. Moreover, one
can argue just as easily that, if the legislature had
intended to extend the application of § 52-577d to non-
perpetrators, it could have said so. Finally, I am not
persuaded by the majority’s conclusion that § 52-577d
must apply to negligent and reckless conduct because
it applies to tort claims for emotional distress. Because
such emotional distress claims can be premised on
intentional conduct or negligent conduct, a common-
sense reading of § 52-577d suggests that it applies to
claims for emotional distress premised on intentional
conduct but does not apply to claims premised on negli-
gent conduct.
Not only does the plain language of § 52-577d compel
the conclusion that it applies only to actions premised
on intentional conduct, but this conclusion is also con-
sistent with the statutory framework pertaining to stat-
utes of limitations set forth in chapter 926 of the General
Statutes. This chapter, which establishes limitation peri-
ods for various types of actions, contains separate pro-
visions for actions premised on intentional torts and
all torts not specifically mentioned in other statutes;
see General Statutes § 52-577; see also Collens v. New
Canaan Water Co., 155 Conn. 477, 491, 234 A.2d 825
(1967); actions premised on specific intentional torts;
see, e.g., General Statutes §§ 52-577b and 52-577c; and
actions premised on negligence or recklessness. See
General Statutes § 52-584. It is well established that
‘‘[t]he enactment of [s]tatutes limiting the time within
which an action may be brought are the result of a
legitimate legislative determination which balances the
rights and duties of competing groups.’’ (Internal quota-
tion marks omitted.) St. Paul Travelers Co. v. Kuehl,
299 Conn. 800, 809, 12 A.3d 852 (2011). The legislature,
recognizing the distinctions between intentional torts
in general, specific intentional torts, and acts of negli-
gence or recklessness, set different time periods for
each type of action. Thus, under § 52-577, a plaintiff
injured as a result of an intentional tort has three years
from the date of the act or omission to commence an
action, whereas, under § 52-584, a plaintiff injured by
negligent or reckless conduct must bring the action
within two years of the date when the injury is first
sustained or discovered. Under General Statutes § 52-
577e, there is no limitation on bringing an action when
an injury has been caused by sexual assault and the
party legally at fault for the injury has been convicted
of sexual assault. When we consider § 52-577d in the
context of this scheme, as mandated by General Stat-
utes § 1-2z, it becomes clear that the thirty year limita-
tion period in § 52-577d applies only to intentional
conduct. To interpret the provision to apply to both
intentional and negligent conduct frustrates the legisla-
ture’s distinctive treatment of intentional, reckless and
negligent conduct, and contravenes our mandate to
interpret statutes to avoid, rather than to create, con-
flict.
The legislative history also supports the conclusion
that § 52-577d does not apply to actions sounding in
negligence. The majority observes that the legislation
was intended ‘‘to afford a plaintiff sufficient time to
recall and come to terms with traumatic childhood
events before he or she must take action . . . .’’ (Inter-
nal quotation marks omitted.) Part V of the majority
opinion, quoting Roberts v. Caton, 224 Conn. 483, 493,
619 A.2d 844 (1993). Although I agree with this senti-
ment, it does not establish that the legislature intended
for § 52-577d to apply to nonperpetrators. In fact, as
the defendant emphasizes in its brief, a key focus of
statutory debate was on the perpetrator of the sexual
abuse. Representative Richard D. Tulisano, introducing
the legislation on the floor of the House of Representa-
tives, explained that it was intended to toll the statute
of limitations so that ‘‘a minor who has been victimized
by sexual assault could bring an action against the
offender—a civil action against the offender.’’ (Empha-
sis added.) 29 H.R. Proc., Pt. 12, 1986 Sess., p. 4388.
After Representative Tulisano explained that ‘‘[m]ost of
these incidents occur with caretakers, that is a parent,
stepparent, uncles, individuals with whom they’ve been,
boyfriends of their mothers . . . [a]nd generally it
begins to occur . . . in the teen years’’; 29 H.R. Proc.,
Pt. 17, 1986 Sess., p. 6328; Representative William L.
Wollenberg expressed his concern that victims would
‘‘go to an attorney and . . . file a civil suit against this
parent or against the uncle or against the caretaker.
. . . They may get a judgment . . . [but] it probably
would be an empty judgment.’’ Id., p. 6337. These
remarks establish that the context for the debate was
whether the legislation made sense when victims might
stand to recover little from perpetrators.
Representative Michael D. Rybak first raised the issue
of whether the proposed legislation would apply to a
nonperpetrator by asking whether passage of an amend-
ment to the proposed legislation would mean that, if
an employee of a day care center committed a sexual
assault, ‘‘[d]oes [liability] fall on the employee, or does
it fall back on the day care center?’’ Id., p. 6356. In
response, Representative Tulisano responded: ‘‘I sup-
pose it’s the institution that maintains its liability, and
the individual would be liable for the incident, the indi-
vidual who caused the act to occur.’’ Id. Representative
Tulisano then further explained: ‘‘[T]his is [wilful] and
wanton. It’s an intentional act that we’re talking about
here under this particular proposal. So the individual
would in fact be responsible personally. The day care
center, I suppose as an institution may continue to have
liability, but [its] policy probably will exclude [wilful]
and [wanton] acts anyway, so as an institution, [it] will
not be liable. And of course, the boards of directors
are already protected . . . so it really lies on the person
who did the act for the most part, the offender.’’ Id., p.
6357. This exchange supports two conclusions. First,
it indicates that the proposal’s sponsors had not really
contemplated whether the proposed legislation would
apply to anyone other than offenders. Second, it indi-
cates that the legislators’ underlying assumption was
that the proposal applied to offenders only. This
exchange simply cannot be interpreted to support a
determination that the legislature intended for § 52-
577d to apply to nonperpetrators.
Moreover, when the time frame in § 52-577d was
amended further by No. 91-240 of the 1991 Public Acts,
Representative Tulisano again introduced the legisla-
tion by explaining that ‘‘[a] number of years ago Con-
necticut was among the first states to recognize that
minor victims of sexual assault often do not have the
independence and the opportunity to bring civil actions
against the perpetrators of crimes against them and at
that time Connecticut, in the beginning, enacted its
current statute, one of the first in the nation, and the
purpose of it is to give individuals an opportunity to
do something for themselves.’’ (Emphasis added.) 34
H.R. Proc., Pt. 13, 1991 Sess., p. 4705. The legislative
debates establish the legislature’s intent to provide sex-
ual assault victims additional time to recall and take
action against the perpetrators of sexual abuse. There
is nothing in the legislative history, however, to indicate
that the proposal would also apply to nonperpetrators.
Turning to the case law, I am not persuaded by the
majority’s reliance on nonbinding authority from other
jurisdictions as a central factor in construing a Connect-
icut statute. In particular, the majority relies on Almonte
v. New York Medical College, 851 F. Supp. 34 (D. Conn.
1994), in which the United States District Court for the
District of Connecticut, after acknowledging that the
Connecticut Supreme Court had never decided whether
§ 52-577d applies to a claim sounding in negligence; see
id., 37; concluded that § 52-577d, rather than § 52-584,
applied in a negligence action. Id., 39. Not only does
the District Court’s decision to decide a question of
Connecticut law contravene our long-standing proce-
dure for encouraging federal courts to certify questions
of law to the Connecticut Supreme Court for decision;
see Practice Book (1978–1997) § 4168; but it effectively
forestalls our independent consideration of the matter.
Although the analysis in Almonte was not binding prece-
dent in Connecticut state courts, it became the founda-
tion for nearly all of the subsequent trial court decisions
on this issue and has now become the foundation for
the present decision. See footnote 24 of the majority
opinion (citing cases); cf. Doe v. Flanigan, Superior
Court, judicial district of Waterbury, Docket No. UWY-
CV-09-501462-S (January 9, 2015) (59 Conn. L. Rptr. 586)
(engaging in little analysis); Truex v. Rogers, Superior
Court, judicial district of Hartford, Docket No. CV-04-
0833129-S (May 10, 2006) (41 Conn. L. Rptr. 330) (relying
on See v. Bridgeport Roman Catholic Diocesan Corp.,
Superior Court, judicial district of Fairfield, Docket No.
CV-93-0300948-S [September 13, 1993] [10 Conn. L. Rptr.
51]). In my view, the routine reliance on Almonte under-
cuts the persuasive value of the majority’s contention
that, ‘‘over the last twenty-two years, there have been
numerous decisions in Connecticut courts holding that
negligence claims against nonperpetrators were subject
to the extended statute of limitations contained in § 52-
577d.’’6 Text accompanying footnote 24 of the major-
ity opinion.
Most important, I do not find the reasoning in
Almonte persuasive. The District Court takes no notice
of the legislature’s statement that § 52-577d applies in
place of § 52-577 and fails to consider § 52-577d in the
context of related statutes, such as § 52-577e. I also
disagree with the District Court’s conclusion that,
because § 52-577d is focused on providing victims with
a recovery for a particular type of harm and is not
expressly limited to actions brought against perpetra-
tors, it applies in negligence actions against nonperpe-
trators. See Almonte v. New York Medical College,
supra, 851 F. Supp. 37–39. The fact that § 52-577d serves
to allow recovery for victims of sexual abuse does not
mean that § 52-577d is intended to permit recovery from
nonperpetrators. In fact, there is no indication in the
statutory language or the legislative history that § 52-
577d was intended to permit recovery from a person
who did not engage in an intentional act and did not
cause the sexual abuse.
Finally, although the majority refers to additional
cases from other jurisdictions; see footnote 21 of the
majority opinion; these cases offer little guidance to
this court because they construe statutes that contain
distinct wording and contexts. To the extent that these
cases offer guidance in assessing the meaning of § 52-
577d in the context of our unique statutory scheme; see
General Statutes § 1-2z; they merely indicate that courts
of other jurisdictions have taken different approaches
in interpreting similar provisions. As the majority
acknowledges, a number of courts have interpreted
statutes similar to § 52-577d to apply only to individuals
who perpetrated the sexual abuse or sexual assault.7 I
am not persuaded by the majority’s attempt to distin-
guish these cases on the ground that the statutes at
issue incorporated a definition of sexual assault that
referred to intentional conduct committed by the perpe-
trator or included language concerning conduct com-
mitted by the perpetrator. See footnote 21 of the
majority opinion. As I discussed previously in this opin-
ion, § 52-577d limits its application to intentional con-
duct by expressly providing that it applies in place of
the intentional tort limitation provision of § 52-577, and
not in place of the negligence or recklessness limitation
provision of § 52-584. Moreover, to the extent that the
cases in other jurisdictions have addressed a definition
of abuse that requires intentional behavior, General
Statutes § 46b-120 (7) provides in relevant part that ‘‘[a]
child or youth may be found ‘abused’ who (A) has been
inflicted with physical injury or injuries other than by
accidental means . . . .’’
Following a careful review of the plain language of
§ 52-577d, the statutory framework, the legislative his-
tory and relevant case law, I would conclude that § 52-
577d does not apply to actions sounding in negligence
or recklessness and does not apply in an action against
entities or individuals who did not commit the sexual
assault. I would therefore conclude that the plaintiff’s
action is time barred by § 52-584 because it was com-
menced more than two years after the plaintiff’s injury
was first sustained or discovered.
1
Specifically, I agree that the trial court (1) improperly denied the request
of the named defendant, The Boy Scouts of America Corporation, to charge
the jury that it could not be held liable for negligence unless the plaintiff,
John Doe, proved that the defendant’s conduct created or increased the
risk that the plaintiff would be harmed by Siegfried Hepp, and (2) incorrectly
determined that the statute of limitations set forth in General Statutes § 52-
577d applied to the plaintiff’s claim brought pursuant to the Connecticut
Unfair Trade Practices Act, General Statutes § 42-110a et seq.
2
Chief Justice Rogers’ opinion, which is joined by Judge Sheldon, is
technically not a majority opinion but, rather, an opinion announcing the
judgment. In the interest of simplicity, we refer to that opinion as the majority
opinion and to Chief Justice Rogers and Judge Sheldon collectively as
the majority.
3
I express no opinion with respect to whether (1) the named defendant,
The Boy Scouts of America Corporation, had a duty to protect the plaintiff,
John Doe, from Siegfried Hepp’s criminal or intentional misconduct, (2)
the plaintiff presented insufficient evidence to support a finding that the
defendant’s conduct had caused the plaintiff’s injuries, and (3) the plaintiff
presented insufficient evidence to support a finding that the defendant had
been reckless.
4
See part V of the majority opinion for the text of § 52-584.
5
Based on this conclusion, Justice Espinosa, Justice Robinson and I would
reverse the trial court’s judgment and remand the case with direction to
render judgment for the named defendant, The Boy Scouts of America
Corporation. The justices in the majority opinion and the other concurrence
and dissent, however, have reached divergent conclusions about the correct
disposition of the case. Chief Justice Rogers and Judge Sheldon, who com-
prise the majority opinion, would reverse the trial court’s judgment and
remand the case for a new trial. Justices Eveleigh and McDonald, who
comprise the other concurrence and dissent, would affirm the trial court’s
judgment. If we were to adhere to our respective positions, there would be
no controlling judgment from this court. In these circumstances, and given
that a majority of the justices of the court have disagreed with the position
that Justice Espinosa, Justice Robinson and I have taken with respect to the
statute of limitations issue, we have considered the merits of the defendant’s
instructional error claim and agree with and join part I of the majority
opinion. We therefore agree that the judgment of the trial court must be
reversed and the case remanded for a new trial.
6
Two Superior Court cases addressed this issue before Almonte was
decided in 1994. See v. Bridgeport Roman Catholic Diocesan Corp., supra,
10 Conn. L. Rptr. 51 (indicating that § 52-577d applies to perpetrators and
nonperpetrators); Ashlaw v. Booth, Superior Court, judicial district of Wind-
ham, Docket No. CV-90-0045313-S (August 9, 1994) (§ 52-584, not § 52-577d,
applied in negligence action against nonperpetrator).
7
See, e.g., Walker v. Barrett, supra, 650 F.3d 1209 (‘‘[a]ny action to recover
damages from injury . . . caused by childhood sexual abuse’’ [internal quo-
tation marks omitted]); Debbie Reynolds Professional Rehearsal Studios v.
Superior Court, 25 Cal. App. 4th 222, 230 n.3, 30 Cal. Rptr. 2d 514 (1994)
(‘‘any civil action for recovery of damages suffered as a result of childhood
sexual abuse’’ [internal quotation marks omitted]); Sandoval v. Archdiocese,
8 P.3d 598, 600 (Colo. App. 2000) (‘‘any civil action based on . . . a sexual
offense against a child’’ [internal quotation marks omitted]); Knaus v. Great
Crossings Baptist Church, Inc., Kentucky Court of Appeals, Docket No.
2009-CA-000141-MR (February 12, 2010) (‘‘[a]ction relating to childhood
sexual abuse or childhood sexual assault’’ [internal quotation marks omit-
ted]), review denied, Kentucky Supreme Court (October 13, 2010); State ex
rel. Heart of America Council v. McKenzie, supra, 484 S.W.3d 327 (‘‘any
action to recover damages from injury . . . caused by childhood sexual
abuse’’ [internal quotation marks omitted]); Kelly v. Marcantonio, 678 A.2d
873, 875 (R.I. 1996) (‘‘[an] action based on intentional conduct brought by
any person for recovery of damages for injury suffered as a result of child-
hood sexual abuse’’ [internal quotation marks omitted]); Bernie v. Blue
Cloud Abbey, 821 N.W.2d 224, 226 (S.D. 2012) (‘‘[a]ny civil action based on
intentional conduct brought by any person for recovery of damages for
injury suffered as a result of childhood sexual abuse’’ [internal quotation
marks omitted]).