eCases

. "To alleviate the harsh consequences that would flow from literal application
of the limitations period, the judiciary created the 'discovery rule,' " which "postpone[s] the
commencement of the relevant statute of limitations until the injured plaintiff knows or
reasonably should know that he has been injured and that his injury was wrongfully caused."
Golla,

167 Ill. 2d at 360-61

.
A statute of repose, however, is designed to place an outer limit on the "long tail" of
liability created by the common law discovery rule. Hester v. Diaz,

346 Ill. App. 3d 550

,
553,

805 N.E.2d 255

, 259 (2004). Accordingly, a statute of repose "is intended to terminate
the possibility of liability after a defined period of time, regardless of a potential plaintiff's
lack of knowledge of his or her cause of action." Ferguson v. McKenzie,

202 Ill. 2d 304

,
39
311,

780 N.E.2d 660

, 664 (2001). Statutes of repose do not incorporate the discovery rule
and generally terminate claims regardless of a plaintiff's lack of knowledge of his or her
cause of action. Goodman v. Harbor Market, Ltd.,

278 Ill. App. 3d 684

, 690-91,

663 N.E.2d 13

, 18 (1995).
Although a statute of repose does not normally incorporate the discovery rule, a
statute of repose, nonetheless, can be tolled if a plaintiff does not discover his claim due to
fraudulent concealment on the part of the defendant. In DeLuna, the Illinois Supreme Court
held that fraudulent concealment can toll the running of a statute of repose because "there
would be an obvious and gross injustice in a rule that allows a defendant–particularly a
defendant who stands in a fiduciary relationship to the plaintiff–to conceal the plaintiff's
cause of action and then benefit from a statute of repose." DeLuna,

223 Ill. 2d at 71

857 N.E.2d at 242

.
In the present case, Wisniewski was abused in the 1970s and maintained that he did
not discover his claim until 2002. In order to toll the running of the statute of limitations
under the common law discovery rule, Wisniewski was required to prove that he neither
knew nor reasonably should have known that he had been injured and that his injury was
wrongfully caused until 2002. To toll the running of the statute of repose, however, under
the fraudulent concealment statute, W isniewski had to prove not only that he did not discover
his claim until 2002 but also that his failure to discover his claim was due to fraudulent
concealment committed by the Diocese.
We begin our analysis of the circuit court's denial of the Diocese's motion for a
judgment n.o.v. with a discussion of the applicable statute of repose and the jury's finding
of fraudulent concealment. We will then discuss the statute of limitations and application
of the common law discovery rule to the facts of the case. Based on our analysis, we
conclude that the circuit court properly denied the Diocese's motion for a judgment n.o.v. on
40
the issues concerning the timeliness of Wisniewski's claim. We find that, under the facts of
this case, the application of the fraudulent concealment statute and the common law
discovery rule presented factual issues for the jury to consider, not legal issues that the
circuit court was required to find in the Diocese's favor as a matter of law.
(A)
Statute of Repose
Prior to January 1, 1991, Illinois did not have a statute of repose applicable to
personal injury claims arising from childhood sexual abuse. On January 1, 1991, the Illinois
General Assembly added section 13-202.2 to the Illinois Code of Civil Procedure (the Code)
(Ill. Rev. Stat. 1991, ch. 110, par. 13-202.2), which established a statute of repose applicable
to childhood sexual abuse cases. When enacted in 1991, section 13-202.2(b) read as follows:
"(b) An action for damages 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,
but in no event may an action for personal injury based on childhood sexual abuse be
commenced more than 12 years after the date on which the person abused attains the
age of 18 years." Ill. Rev. Stat. 1991, ch. 110, par. 13-202.2(b).
Accordingly, section 13-202.2(b), as enacted in 1991, contained a 2-year statute of
limitations and a 12-year statute of repose.
The effect of the enactment of the 1991 statute of repose contained in section 13-
202.2 was "to bar anyone over the age of 30 from bringing an action for personal injury
based on childhood sexual abuse." Doe A. v. Diocese of Dallas,

234 Ill. 2d 393

, 408,

917 N.E.2d 475

, 484 (2009). In the present case, Wisniewski turned 30 on March 6, 1991,
approximately two months after the legislature enacted the statute of repose.
41
Effective January 1, 1994, the legislature eliminated the 12-year statute of repose for
childhood sexual abuse claims. After the 1994 amendment, section 13-202.2(b) provided
as follows:
"(b) An action for damages 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."
735 ILCS 5/13-202.2(b) (West 1994).
However, the legislature's repeal of the statute of repose is not applied retroactively
to revive claims that had expired prior to the repeal of the statute of repose. The Illinois
Supreme Court has held that the Illinois Constitution does not permit retroactive application
of amendments to section 13-202.2(b) to revive otherwise time-barred claims for childhood
sexual abuse. Diocese of Dallas,

234 Ill. 2d at 409

917 N.E.2d at 484

. The court stated,
" '[I]f the claims were time-barred under the old law, they remained time-barred even after
the repose period was abolished by the legislature.' " Diocese of Dallas,

234 Ill. 2d at 409

917 N.E.2d at 484

 (quoting M.E.H. v. L.H.,

177 Ill. 2d 207

, 215,

685 N.E.2d 335

, 339
(1997)). Accordingly, for purposes of analyzing the timeliness of Wisniewski's claim with
respect to the statute of repose, we must apply the 1991 version of section 13-202.2 of the
Code to his claim.
Under the 1991 statute of repose, Wisniewski had until he turned 30 to file his action
against the Diocese, but he did not file his claim until 2002, when he was 41 years old. In
response to the statute of repose, Wisniewski invoked the fraudulent concealment statute and
maintained that he did not discover that he was injured and did not discover the Diocese's
wrongful conduct until 2002 because of the Diocese's fraudulent concealment. The issue of
fraudulent concealment was submitted to the jury, and the jury decided the issue in
42
Wisniewski's favor.
(1)
The Jury's Finding of Fraudulent Concealment
As we stated, prior to the trial, the Diocese filed a motion for a summary judgment
that raised the statute of repose. The circuit court, however, denied the Diocese's motion,
finding that there were material issues of fact concerning the application of the fraudulent
concealment statute to toll the running of the statute of repose. The circuit court determined
that it would submit the issue of fraudulent concealment to the jury to be decided before the
jury considered issues of liability and damages.
At the trial, the jury resolved the issue of fraudulent concealment in W isniewski's
favor by entering a verdict deciding that issue in his favor. The jury also entered a general
verdict in Wisniewski's favor awarding damages. At the conclusion of the trial, the Diocese
filed a motion for a judgment n.o.v., arguing, among other things, that the evidence did not
establish fraudulent concealment as a matter of law. The circuit court denied the Diocese's
motion for a judgment n.o.v., and on appeal, the Diocese argues that the circuit court erred
in denying the motion. Therefore, the fraudulent concealment issue is presented to us on
appeal by way of the circuit court's denial of a motion for a judgment n.o.v.
A trial court's ruling on a motion for a judgment n.o.v. is subject to a de novo standard
of review. McClure v. Owens Corning Fiberglas Corp.,

188 Ill. 2d 102

, 132,

720 N.E.2d 242

, 257 (1999). A judgment n.o.v. is properly entered only in those limited cases where "all
of the evidence, when viewed in its aspect most favorable to the opponent, so
overwhelmingly favors movant that no contrary verdict based on that evidence could ever
stand." Pedrick v. Peoria & Eastern R.R. Co.,

37 Ill. 2d 494

, 510,

229 N.E.2d 504

, 513-14
(1967). "In ruling on a motion for a judgment n.o.v., a court does not weigh the evidence,
nor is it concerned with the credibility of the witnesses; rather it may only consider the
43
evidence, and any inferences therefrom, in the light most favorable to the party resisting the
motion." Maple v. Gustafson,

151 Ill. 2d 445

, 453,

603 N.E.2d 508

, 512 (1992). "Most
importantly, a judgment n.o.v. may not be granted merely because a verdict is against the
manifest weight of the evidence." Maple,

151 Ill. 2d at 453

603 N.E.2d at 512

. Therefore,
in the present case, we are asked to determine, among other issues, whether the evidence
justified the submission of the fraudulent concealment issue to the jury. See Valdes v.
Karoll's, Inc.,

277 F.2d 637

, 638 (7th Cir. 1960). Applying this standard, we cannot say that
the evidence supports only one reasonable conclusion in the Diocese's favor on the issue of
fraudulent concealment. Rather, we find that there was ample evidence to support the jury's
verdict on that issue.
The doctrine of fraudulent concealment is codified in section 13-215 of the Code, and
it provides, "If a person liable to an action fraudulently conceals the cause of such action
from the knowledge of the person entitled thereto, the action may be commenced at any time
within 5 years after the person entitled to bring the same discovers that he or she has such
cause of action, and not afterwards." 735 ILCS 5/13-215 (West 2008).              "Fraudulent
concealment, as codified in section 13-215, is not a cause of action in and of itself; rather,
it acts as an exception to the time limitations imposed on other, underlying causes of action."
Cangemi v. Advocate South Suburban Hospital,

364 Ill. App. 3d 446

, 459,

845 N.E.2d 792

,
805 (2006).
"The concealment contemplated in section 13-215 must consist of affirmative acts or
representations which are calculated to lull or induce a claimant into delaying filing of his
claim or to prevent a claimant from discovering his claim." Smith v. Cook County Hospital,

164 Ill. App. 3d 857

, 862,

518 N.E.2d 336

, 340 (1987). "A plaintiff must plead and prove
that the defendant made misrepresentations or performed acts which were known to be false,
with the intent to deceive the plaintiff, and upon which the plaintiff detrimentally relied."
44
Orlak v. Loyola University Health System,

228 Ill. 2d 1

, 18,

885 N.E.2d 999

, 1009 (2007).
As a general rule, mere silence on the part of the defendant and a failure by the
plaintiff to learn of the cause of action are not enough to establish fraudulent concealment.
Chicago Park District v. Kenroy, Inc.,

78 Ill. 2d 555

, 561,

402 N.E.2d 181

, 185 (1980).
However, there is an exception to this general rule when there is a fiduciary or trust or other
confidential relationship between the plaintiff and the defendant. Chicago Park District,

. The prevailing rule is that when such a relationship exists,
the person occupying the position of fiduciary or of confidence is under a duty to reveal the
facts to the plaintiff, and his silence is as fraudulent as an actual affirmative false
representation or act. Chicago Park District,

. Silence
by a person in a position of trust concerning the facts giving rise to a cause of action amounts
to fraudulent concealment. Chicago Park District,

.
On appeal, the Diocese argues that the evidence was insufficient to submit the issue
of fraudulent concealment to the jury because there was no evidence presented at the trial
that the Diocese made any misrepresentations directly to Wisniewski that lulled him into
delaying the filing of his claim or prevented him from discovering he had a claim against the
Diocese. In addition, the Diocese maintains that it was not in a fiduciary, special, or
confidential relationship with Wisniewski and that, therefore, its silence with respect to
Wisniewski's claim does not support a finding that it fraudulently concealed the claim. We
disagree. When viewing the evidence presented at the trial in the light most favorable to
Wisniewski, we cannot conclude that the evidence so overwhelmingly favors the Diocese on
the issue of fraudulent concealment that the jury's verdict cannot stand.
At the trial, the circuit court instructed the jury to first decide whether the Diocese
fraudulently concealed the cause of action from W isniewski before it considered issues of
liability and damages. The jury instructions defined "fraudulent concealment" as follows:
45
"a) Affirmative acts or representations made by the defendant that were
designed to prevent and, in fact, did prevent[] plaintiff from discovering his claim
against the defendant; or
b) The defendant failed to disclose all material facts concerning the existence
of plaintiff's cause of action against the defendant and there was a special relationship
that existed between plaintiff and defendant whereby the plaintiff placed trust and
confidence in defendant thereby placing defendant in a position of influence and
superiority over plaintiff."
The jury instructions further stated that Wisniewski had the burden of proving, by
clear and convincing evidence, that the Diocese fraudulently concealed his cause of action
and that he commenced his cause of action against the Diocese within five years of
discovering it. As noted above, the Diocese does not take issue with the jury instructions,
and we believe that Wisniew ski presented evidence from which the jury could find in his
favor on the issue of fraudulent concealment as defined in the jury instructions.
The first prong of the jury instruction defining fraudulent concealment stated that
fraudulent concealment included "acts or representations made by the defendant that were
designed to prevent and, in fact, did prevent[] plaintiff from discovering his claim against the
defendant."    The Diocese maintains that, as a matter of law, evidence of acts or
representations its officers made with respect to Kownacki's qualifications to be a priest after
Wisniewski left the Salem parish in 1980 cannot support the jury's finding of fraudulent
concealment because there was no evidence presented that Wisniewski was aware of the
officers' acts or representations that occurred after he left the Salem parish. With respect to
the affirmative representations made by Kownacki, i.e., that the abuse was a good thing that
helped the priest, the Diocese argues that Wisniewski did not present any evidence that any
officer or principal of the Diocese knew of Kownacki's representations to Wisniewski at the
46
time he made them. Therefore, the Diocese concludes, Kownacki's representations to
Wisniewski cannot constitute affirmative acts of fraudulent concealment on the part of the
Diocese as defined under the first prong of the fraudulent concealment definition. See
Barbour v. South Chicago Community Hospital,

156 Ill. App. 3d 324

, 330-31,

509 N.E.2d 558

, 563 (1987) ("Illinois courts, including the supreme court, have refused to expand ***
section 13-215 to include an unknowing principal.").
We need not determine whether Wisniewski presented sufficient evidence to establish
fraudulent concealment under the first prong of the definition instruction because we hold
that Wisniewski presented sufficient evidence to establish fraudulent concealment under the
second prong of the definition instruction. See, e.g., Krklus v. Stanley,

359 Ill. App. 3d 471

,
479,

833 N.E.2d 952

, 959 (2005) (when there is a general verdict after more than one theory
has been presented to a jury, the verdict will be upheld on appeal if there was sufficient
evidence to sustain any of the theories presented).
The second prong of the fraudulent concealment definition instruction stated that
fraudulent concealment occurs if the "defendant failed to disclose all material facts
concerning the existence of plaintiff's cause of action against the defendant and there was a
special relationship that existed between plaintiff and defendant whereby the plaintiff placed
trust and confidence in defendant thereby placing defendant in a position of influence and
superiority over plaintiff." In challenging a finding of fraudulent concealment under the
second prong of the definition instruction, the Diocese argues that, as a matter of law, it did
not have a special relationship with Wisniewski or occupy a position of trust. We disagree.
We believe that the issue of whether a relationship of trust existed between Wisniewski and
the Diocese was not an issue to be decided by the court as a matter of law but was a factual
issue that was properly submitted to the jury to decide.
(a)
47
Evidence of a Special Relationship That Placed the Diocese and Its Officers and Agents
in a Position of Influence and Superiority Over Wisniewski
The jury heard evidence that the Diocese, its officers, its priests, and its parish in
Salem, Illinois, played a central role in Wisniewski's life from the time his parents first
moved to Salem when he was a young boy and throughout his childhood. The family was
very active in church life, and Wisniewski and his siblings were taught to obey and believe
everything the Diocese's bishops, monsignors, and priests said to them. Wisniewski was an
active parishioner and an altar boy and was taught to trust and respect the Diocese and put
his faith and trust in its agents and employees. He attended the Diocese's Catholic grade
school for a number of years, worked around the parish, and expressed interest in becoming
a Catholic priest.
The agents and employees of the Diocese were held in high esteem in Wisniewski's
family and were placed on a pedestal, and the Diocese itself fostered, promoted, and
encouraged this trusting relationship by urging its parishioners to trust their priests'
"knowledge, piety, prudence, experience, and general character." In fact, when the Diocese
appointed Kownacki to the parish in Salem, the bishop, as the Diocese's CEO, "command[ed]
all, whom it may concern, to recognize [Kownacki] as such Pastor and grant [him] all
necessary assistance." The Diocese successfully garnered this trust with W isniewski's
parents and with Wisniewski, and it is this very trust that Kownacki exp loited in order to
sexually abuse Wisniewski for years.         The Diocese's assertion that the evidence was
insufficient for the jury to conclude that it held a position of trust over Wisniewski is entirely
unconvincing. The evidence overwhelmingly established that Wisniewski placed his trust
and confidence in the Diocese and that the Diocese not only accepted that trust and
confidence but encouraged and promoted it.
The Diocese argues that Illinois courts and public policy do not recognize any duty,
48
fiduciary or otherwise, between a parishioner and his pastor. The Diocese cites three cases
in support of this argument: Dausch v. Rykse,

52 F.3d 1425

, 1438-39 (7th Cir. 1994) (per
curiam), Maryland Casualty Co. v. Havey,

887 F. Supp. 195

, 200 (C.D. Ill. 1995), and
Amato v. Greenquist,

287 Ill. App. 3d 921

, 931-32,

679 N.E.2d 446

, 453-54 (1997). These
cases are not persuasive in the present case because they do not analyze the relationship
between a parishioner and a priest or a diocese in terms of applying the fraudulent
concealment statute.
In Amato, the plaintiff sued a pastor, a bishop, and a church organization for
psychotherapy malpractice and a breach of a fiduciary duty after the plaintiff received
marriage counseling from the pastor at the same time the pastor was having an affair with the
plaintiff's wife. Amato,

287 Ill. App. 3d at 923

679 N.E.2d at 448

. The trial court dismissed
the plaintiff's complaint for various reasons but primarily because Illinois did not recognize
the tort of clergy malpractice and because the relationship between cleric and parishioner
was not a fiduciary one. Amato,

287 Ill. App. 3d at 924

679 N.E.2d at 449

.
On appeal, the Amato court held that the first amendment "prohibited the recognition
of an action for breach of fiduciary duty premised upon the counselling relationship between
a cleric and a church member with whom the cleric had been sexually involved." Amato,

287 Ill. App. 3d at 932

679 N.E.2d at

454 (citing Dausch v. Rykse,

52 F.3d 1425

, 1438 (7th
Cir. 1994) (per curiam)). The court recognized that the relationship between a cleric and a
parishioner "reflects many aspects of a fiduciary one," but it held that under Illinois law, a
contention that a cleric has breached his duty as a fiduciary is not actionable because religion
is the foundation for that claim. Amato,

287 Ill. App. 3d at 932

679 N.E.2d at 454

. The
court noted that in Illinois the courts have refused to entertain similar claims of "clergy
malpractice" because "the first amendment's free exercise clause prohibits courts from
considering claims requiring the interpretation of religious doctrine." Amato,

287 Ill. App. 49

3d at 925-26,

679 N.E.2d at 450

.
In Maryland Casualty Co., the court had to determine an insurance company's duty
to defend a complaint filed by parishioners against a priest and the Diocese of Springfield.
Maryland Casualty Co.,

887 F. Supp. at 196

. The complaint alleged that the priest sexually
abused the parishioners when they were approximately 11 or 12 years old. Maryland
Casualty Co.,

887 F. Supp. at 196

. In analyzing whether the parishioners could recover
under a theory that the priest negligently breached his duties as a priest, the court stated,
"Illinois courts have refused to create a legally recognized duty between clergymen and their
congregation." Maryland Casualty Co.,

887 F. Supp. at

200 (citing Dausch v. Rykse,

52 F.3d 1425

 (7th Cir. 1994) (per curiam)). The court concluded that without that duty, the
parishioners could not maintain an action for the negligent infliction of emotional distress
or for the breach of a fiduciary duty. Therefore, the insurance company did not have a duty
to defend those claims because they did not state a claim for which relief could be granted.
Maryland Casualty Co.,

887 F. Supp. at 200

.
In Dausch, a member of a church's congregation filed a claim against the church and
its pastor, alleging that the pastor improperly engaged in sexual relations with her when she
sought counseling. Dausch,

52 F.3d at 1427

. The plaintiff alleged, among other things, that
the pastor "held himself out *** to be a duly qualified person engaged in providing
psychological counseling" and committed "professional negligence" by engaging in "sexual
relations" with her during counseling sessions. Dausch,

52 F.3d at 1427-28

. The trial court
granted the defendants' motion to dismiss the complaint for a failure to state a claim upon
which relief could be granted. Dausch,

52 F.3d at 1428

.
On appeal, the Dausch court noted that Illinois has rejected a cause of action for
clergy malpractice because the evaluation of those claims would require the courts to
evaluate religious tenets. Dausch,

52 F.3d at 1432

 (Ripple, J., concurring in part and
50
dissenting in part). 3 However, the court also noted that the courts' refusal to examine the
conduct of the clergy "has not been extended to situations in which the conduct in question
does not bear such a direct relationship to the doctrinal or organizational aspects of religious
practice." Dausch,

52 F.3d at 1432

 (Ripple, J., concurring in part and dissenting in part).
Illinois allows judicial scrutiny of the conduct of clergy that "does not implicate judicial
assessment of the tenets of a particular religion or a determination of whether a particular
litigant has adhered to those tenets." Dausch,

 (Ripple, J., concurring in part
and dissenting in part). Under those circumstances, the sole inquiry is whether the individual
has engaged in conduct that the state has deemed harmful. Dausch,

 (Ripple,
J., concurring in part and dissenting in part). In other words, "[t]ort claims for behavior by
a cleric that does not require the examination of religious doctrine are cognizable." Dausch,

 (Ripple, J., concurring in part and dissenting in part).          In addressing
the plaintiff's allegation that the defendants breached a fiduciary duty they owed to her, the
Dausch court held that alleging a breach of a fiduciary relationship "was simply an elliptical
way of alleging clergy malpractice." Dausch,

52 F.3d at 1438

 (Ripple, J., concurring in part
and dissenting in part). The court stated, "If the court were to recognize such a breach of
fiduciary duty, it would be required to define a reasonable duty standard and to evaluate [the
pastor's] conduct against that standard, an inquiry identical to that which Illinois has declined
to undertake in the context of a clergy malpractice claim and one that is of doubtful validity
under the Free Exercise Clause." Dausch,

52 F.3d at 1438

 (Ripple, J., concurring in part and
dissenting in part).
The present issue is distinguishable from the issues in Amato, Maryland Casualty Co.,
and Dausch because the issue in the present case is not whether Wisniewski can maintain
__________________
3
Judge Ripple wrote separately, concurring in part and dissenting in part, but the
concurring portions of his opinion are the majority holdings on the issues addressed therein.
51
a cause of action against the Diocese for clergy malpractice. Instead, the issue is whether
there was a special relationship between W isniewski and the Diocese for purposes of the
fraudulent concealment statute, and the analysis of that issue does not involve any judicial
analysis of religious doctrine or whether the Diocese adhered to religious tenets. As the
court in Amato stated, the relationship between a priest and a parishioner reflects many
aspects of a special or fiduciary relationship (Amato,

287 Ill. App. 3d at 932

679 N.E.2d at 454

), and it is those aspects of the relationship that are relevant to the application of the
fraudulent concealment statute to the facts of the present case.
A determination that a special relationship existed between Wisniewski and the
Diocese did not require the court or the jury to engage in interpretation of religious doctrine,
but only to determine whether Wisniewski placed his trust and confidence in the Diocese
thereby placing the Diocese in a position of influence and superiority over him. The jury's
determination of this issue did not implicate the free exercise clause of the first amendment.
The jury was asked to determine whether the special relationship existed and, if so, whether
the Diocese failed to disclose all material facts concerning the existence of Wisniewski's
claim against it. To invoke the protection of the first amendment, the Diocese must assert
that the conduct at issue was "rooted in religious belief." Sanders v. Casa View Baptist
Church,

134 F.3d 331

, 337-38 (5th Cir. 1998). The Diocese does not and cannot contend
that its silence about the abuse committed by Kownacki was a part of Catholic religious
beliefs and practices. On the contrary, the evidence at the trial established that the Diocese
considered Wisniewski's abuse as "dirty laundry" that it did not want to hang out in public.
Furthermore, contrary to the Diocese's assertion on appeal, in affirming the circuit
court's denial of its motion for a judgment n.o.v., we are not required to hold that the Diocese
has a special or fiduciary relationship, as a matter of law, with all of its parishioners.
Instead, we hold that it was an issue of fact for the jury to decide. Consistent with the
52
established standard of review for the denial of a motion for a judgment n.o.v., we hold that
the jury in the present case was entitled to find, based on the evidence presented at the trial,
that the Diocese held a position of trust and confidence with Wisniewski for purposes of the
application of the fraudulent concealment statute.
(b)
The Diocese's Failure to Disclose All Material Facts Concerning the Existence of
Wisniewski's Cause of Action Against It
Since the evidence was sufficient for the jury to conclude that the Diocese held a
special relationship with Wisniewski, the next step in our analysis under the second prong
of the fraudulent concealment definition instruction is to determine whether the jury could
have concluded that the Diocese failed to disclose all material facts concerning Wisniewski's
claim against it in light of the special relationship. As noted above, the Diocese argues that
Kownacki's fraudulent representations that the sexual abuse was good and helpful to the
priest does not constitute affirmative acts or representations attributable to the Diocese to
support a finding of fraudulent concealment under the first prong of the definition instruction
because there was no evidence that it was aware of the representations at the time they were
made. However, under the facts of this case, the jury could, nonetheless, find that the
Diocese's silence after it learned that Wisniewski was abused by Kownacki constituted
fraudulent concealment of Wisniewski's cause of action under the second prong of the
definition instruction.
The jury learned that the Diocese became aware of Kownacki's abuse of W isniewski
as early as 1982 when the parents of the freshman boy reported to the Diocese's officers at
the chancery that their son had been abused by Kownacki. The parents reported that
Kownacki represented to their son that the abuse was okay and was "a sign of friendship."
Kownacki made the freshman boy promise not to tell his parents and told the boy that he had
53
done the same thing with Wisniewski. The jury also considered evidence that the Diocese
was aware that in the 1970s Kownacki abused Gina and did so by telling her that the sexual
abuse was acceptable in the eyes of God and the Church.
Accordingly, the jury heard evidence that, in 1982, the officers of the Diocese were
aware that Kownacki had sexually abused several minor parishioners, including W isniewski,
and, importantly, that a crucial element of Kownacki's method of abuse was positive
coercion, i.e., representations that the abuse was a good thing. The Diocese was aware that
Kownacki made those representations as a Diocesan priest and that he used his position as
its priest as an inroad for facilitating his abuse and for lending credibility to the false
representations he made to his victims.       In other words, the Diocese was aware that
Kownacki made misrepresentations to his child victims concerning the nature of the sexual
abuse, using the Diocese's special relationship with its child parishioners to influence his
victims into believing that the abuse was a good thing. This evidence was sufficient for the
jury to find that the Diocese's special relationship with W isniewski as a St. Theresa's
parishioner created an affirmative duty on the part of the Diocese to contact W isniewski
about Kownacki's abuse and disavow Kownacki's representations that his abuse was good
and helpful to the priest.    The Diocese, however, remained silent.         Considering the
instructions given to the jury and viewing the evidence in light most favorable to Wisniewski,
the evidence was more than sufficient for the jury to find that the Diocese's continued silence
after learning that Wisniewski was abused was the equivalent of an affirmative act of
fraudulent concealment of Wisniewski's claim against it.
(c)
The Diocese's Silence Prevented Wisniewski From (1) Discovering That He Sustained an
Injury and (2) Discovering That the Diocese's Wrongful Conduct Caused His Injuries
54
The next step in our analysis is to determine whether the evidence was sufficient for
the jury to find that the Diocese's silence prevented Wisniewski from discovering his claim
until 2002. The fraudulent concealment must have lulled Wisniewski into delaying the filing
of his claim or prevented him from discovering his claim. See Smith v. Cook County
Hospital,

164 Ill. App. 3d 857

, 862,

518 N.E.2d 336

, 340 (1987). We believe that the
evidence was sufficient for the jury to conclude that the Diocese's fraudulent concealment
by silence prevented Wisniewski from discovering his claim until 2002.
On the issue of when Wisniewski discovered his claim, the jury was instructed as
follows:
"The plaintiff is deemed to have discovered his cause of action when he both:
1) Knows or should have known that he has sustained an injury; and
2) That the injury was caused by the wrongful conduct of the defendant."
With respect to the first prong of this definition instruction, Wisniewski presented evidence
from which the jury could find that he did not know and should not have known that he
sustained any injury from Kownacki's abuse until 2002 when the Boston priest scandal
became national news and that the Diocese's silence prevented him from discovering his
injuries before that time.
The evidence supported a finding that the specific injury that Wisniewski suffered was
posttraumatic stress disorder that first manifested itself in January of 2002. A psychiatrist
who examined Wisniewski, Dr. Peterson, testified that prior to 2002, Wisniewski did not
exhibit any criteria for posttraumatic stress disorder because, in part, Wisniewski came to
believe that Kownacki's representations were correct and that he helped the priest by
submitting to the abuse. The psychiatrist told the jury that Wisniewski accepted that
Kownacki's abuse was a good thing and that a major part of Wisniewski's psychological
defense mechanism was believing that what happened was helpful to the priest. In 2002,
55
however, the news stories of child sexual abuse by Boston priests overwhelmed Wisniewski's
defenses, and he then, for the first time, began suffering from the symptoms of posttraumatic
stress disorder, including nightmares, depression, loss of energy and focus, difficulty
sleeping, persistent suicidal thoughts, and recollections about his abuse that interfered with
his everyday life. Peterson testified that in his opinion, to a reasonable degree of medical
certainty, in 2002, Wisniewski first became aware that he had sustained an injury as a result
of the repeated acts of sexual molestation committed by the Diocese's priest.
Likewise, another psychiatrist, Dr. Kopacz, testified that there was no indication in
Wisniewski's history after he left the Salem parish of any significant problems in functioning
or coping in his life until the media coverage of the Boston priest scandal in early 2002.
Kopacz explained to the jury that, as a child, Wisniewski was very submissive and was
programmed to believe everything Kownacki said, which allowed Kownacki to manipulate
Wisniewski's sense of reality.     However, the media coverage of the Boston scandal
overwhelmed Wisniewski, and he began experiencing posttraumatic stress disorder.
The jury could have concluded from this evidence that the Diocese's fraudulent
concealment by silence after it learned of Wisniewski's abuse prevented Wisniewski from
discovering his injuries until 2002. The Diocese, having knowledge of Kownacki's abuse
and false representations in 1982, failed to contact Wisniewski and address the abuse or
address Kownacki's representations concerning the nature of the abuse Kownacki made as
its priest. The jury could have found this evidence particularly compelling given (1) the
special relationship that existed between the Diocese and Wisniewski, (2) that Kownacki's
manipulation of Wisniewski's perception of reality occurred when Wisniewski was a young
and impressionable parishioner, and (3) that K ownacki exploited the Diocese's special
relationship with Wisniewski in order to abuse Wisniewski and manipulate his sense of
reality. Under these facts, the evidence was sufficient for the jury to find in Wisniewski's
56
favor on the issue of when he is deemed to have discovered his cause of action.
Furthermore, under the second prong of the jury instruction that defined when
Wisniewski is deemed to have discovered his claim, the evidence was sufficient for the jury
to conclude that Wisniewski had no reason to know of or suspect any wrongdoing by the
Diocese prior to 2002. There was no evidence to suggest that Wisniewski was aware or
should have been aware that the officers of the Diocese actually knew of Kownacki's
pedophile tendencies when it appointed him as the parish priest and knew of Kownacki's use
of false representations as a positive coercion tactic to facilitate his abuse.
We find Chicago Park District v. Kenroy, Inc.,

78 Ill. 2d 555

, 563,

402 N.E.2d 181

,
185 (1980), instructive in analyzing the circuit court's denial of the Diocese's motion for a
judgment n.o.v. on the issue of fraudulent concealment. In Chicago Park District, a park
district initiated eminent domain proceedings to acquire a parcel of real property owned by
the defendants. Prior to the proceedings, however, the defendants bribed a city alderman to
rezone the property, which increased its value by $5 million. Chicago Park District,

78 Ill. 2d at 559

402 N.E.2d at 183

. The City of Chicago and the park district did not discover the
fraud until several years later, after which they brought a lawsuit against the defendants,
alleging the fraud and seeking the imposition of a constructive trust and to recover actual and
punitive damages. Chicago Park District,

78 Ill. 2d at 559-60

402 N.E.2d at 183-84

. The
defendants raised the applicable statute of limitations, and one of the issues on appeal was
whether the complaint adequately alleged fraudulent concealment sufficient to toll the statute
of limitations. Chicago Park District,

78 Ill. 2d at 560

402 N.E.2d at 184

.
In holding that the complaint sufficiently pled fraudulent concealment, the court
initially noted that silence ordinarily does not constitute fraudulent concealment, but when
a person who is in a position of trust remains silent when he ought to speak, he can be found
to have fraudulently concealed. Chicago Park District,

.
57
The court stated that the alderman who took the bribe occupied a fiduciary relationship with
the city. Chicago Park District,

. The court further
stated that according to the allegations in the complaint, "there was no apparent reason for
the City to suspect that its fiduciary *** had entered into a scheme of bribery and fraud with
the defendants until it became apparent during" the alderman's prosecution for failing to
report bribes on his income taxes. Chicago Park District,

235 Ill. App. 3d at 936-37

. In ruling that the defendants could not utilize the statute of limitations to "protect their
allegedly ill-gotten gains," the court stated, "To hold that the City was obliged to search for
the misfeasance of its duly elected public official, absent a prior indication of wrongdoing,
would require it to presume unfaithfulness on the part of its fiduciary." Chicago Park
District,

78 Ill. 2d at 563-64

402 N.E.2d at 185-86

.
Likewise, in the present case, the jury was presented with evidence of a relationship
of trust between the Diocese and Wisniewski, with Wisniewski placing his trust and
confidence in the Diocese, its agents, and its employees. The evidence further supported a
finding that Wisniewski had no reason to suspect that the Diocese, in fact, knew of
Kownacki's history of abusing the Diocese's relationship of trust with its parishioners in
order to commit child sexual abuse. When the Diocese learned of Wisniewski's sexual
abuse, it remained silent, and Wisniewski had no reason to suspect that the Diocese betrayed
his trust and confidence. Under these circumstances, we will not second-guess the jury's
verdict.
The Diocese argues that even if there was a relationship of trust and confidence
between it and Wisniewski, the fraudulent concealment statute did not relieve Wisniewski
of the obligation to investigate the Diocese's wrongdoing. See Dancor International, Ltd.
v. Friedman, Goldberg & Mintz,

288 Ill. App. 3d 666

, 676,

681 N.E.2d 617

, 624 (1997) (the
fraudulent concealment statute does not apply to a party who, through the exercise of
58
ordinary diligence, could have discovered the concealed information). The Diocese notes
that Wisniewski always remembered that the sexual abuse occurred, knew the identity of his
abuser, and knew that his abuser was a priest of the Diocese. The Diocese concludes,
therefore, that as a matter of law Wisniewski always had sufficient notice of his cause of
action against it regardless of any fraudulent concealment by silence. We disagree.
"Whether the injured person has become possessed of sufficient information
concerning his or her injury and its cause to put a reasonable person on inquiry to determine
whether actionable conduct is involved is usually a question of fact." Pruitt v. Schultz,

235 Ill. App. 3d 934

, 936,

601 N.E.2d 1372

, 1374 (1992). In the present case, the jury found,
based upon the evidence presented at the trial, that Wisniewski commenced his action within
five years of the time he knew or should have known (1) that he sustained an injury and (2)
that the injury was caused by the wrongful conduct of the Diocese. The factual issue of
when Wisniewski is deemed to have discovered his injury was properly submitted to the jury,
and for the reasons explained above, we believe that the evidence supports the jury's finding
in Wisniewski's favor on that issue. We cannot say that only one conclusion could be drawn
on undisputed facts; therefore, the question was "best left for [the jury]." Pruitt,

601 N.E.2d at 1375

.
In support of its argument that Wisniewski had sufficient notice to prevent the
application of the fraudulent concealment statute, the Diocese cites a number of cases from
other jurisdictions, including Doe v. Archdiocese of Cincinnati, 2006–Ohio–2625,

849 N.E.2d 268

, Baselice v. Franciscan Friars Assumption BVM Province, Inc., 2005 PA Super.
246,

879 A.2d 270

, and Cevenini v. Archbishop of Washington,

707 A.2d 768

 (D.C. 1998).
In Archdiocese of Cincinnati, the plaintiff was a victim of child sexual abuse by a
priest that occurred from 1980 through 1983. Archdiocese of Cincinnati, 2006–Ohio–2625,
¶3, 849 N.E.2d at 270-71. The plaintiff filed a lawsuit against the archdiocese in 2004 after
59
he learned that the priest had abused other victims. Id. at ¶5, 849 N.E.2d at 271. The
plaintiff alleged that before he learned about the other victims, he had no reason to believe
that the archdiocese had known about the priest's abuse. Id. at ¶4, 849 N.E.2d at 271. The
court, however, noted that the plaintiff "knew the identity of his alleged perpetrator and knew
the employer of his alleged perpetrator." Id. at ¶47, 849 N.E.2d at 279. Therefore, in
holding that the plaintiff's claim was time-barred as a matter of law, the court stated that the
plaintiff "had all of the facts necessary to investigate and prosecute his potential causes of
action against the archdiocese." Id. at ¶47, 849 N.E.2d at 279.
Similarly, in Baselice, the court noted that the plaintiff "knew he was injured, knew
the identity of the primary cause of his injury, and knew his abuser was an employee of the
Archdiocese of Philadelphia, yet [the plaintiff] conducted no investigation into any ***
aspect of the matter." Baselice, 2005 PA Super. 246, ¶19,

879 A.2d 270

. The court
concluded that, as a matter of law, "[t]hese facts alone were sufficient to put [the plaintiff]
on notice that there was a possibility that the Archdiocese had been negligent." Baselice,
2005 PA Super. 246, ¶19,

879 A.2d 270

.
In Cevenini, the plaintiffs were sexually abused by a priest when they were teenagers
in the mid-1970s. Cevenini,

707 A.2d at 770

. The plaintiffs filed a complaint against the
archdiocese in 1995 after a newspaper published a series of articles disclosing that the
archdiocese knew of the priest's pedophilic tendencies before he was assigned to the
plaintiffs' church. Cevenini,

707 A.2d at 769

. The plaintiffs maintained that they had no
knowledge of the archdiocese's wrongdoing until the publication of the newspaper articles.
Cevenini,

707 A.2d at 770

. In holding that the claims were untimely as a matter of law, the
Cevenini court stated the plaintiffs were aware that it was the archdiocese that assigned the
priest to their church and that the priest was a "subordinate representative" of the
archdiocese. Cevenini,

707 A.2d at 773

. In addition, the abuse occurred on church premises
60
while the priest was functioning as a representative of the archdiocese. The court concluded
that under these circumstances, "a reasonable plaintiff would have investigated his potential
claims against the Archdiocese at the same time that his claims accrued against its
representative." Cevenini,

707 A.2d at 773

.
In the recent case of Doe v. Catholic Bishop for the Diocese of Memphis,

306 S.W.3d 712

 (Tenn. Ct. App. 2008), the court analyzed similar cases from different jurisdictions,
including Archdiocese of Cincinnati and Cevenini, and concluded that there were two views
on this issue. The court cited Archdiocese of Cincinnati and Cevenini as examples of an
"apparent majority" of courts that hold "as a matter of law that the plaintiff, in the exercise
of reasonable diligence, would have discovered the defendant church's knowledge of the
clergy member's prior acts of abuse, and that the plaintiff's lawsuit against the church is time-
barred." Catholic Bishop for the Diocese of Memphis,

306 S.W.3d at 722

. The court also
stated that a "minority of courts" have held that "a fact issue exists as to whether the plaintiff,
in the exercise of reasonable diligence, would have discovered the church's alleged
knowledge of the prior sexual abuse." Catholic Bishop for the Diocese of Memphis,

306 S.W.3d at 722

.
As an example of the "minority" cases, the Catholic Bishop for the Diocese of
Memphis court cited A.L.M. v. Diocese of Allentown,

68 Pa. D. & C. 4th 111

 (2004), and
Matthews v. Roman Catholic Diocese of Pittsburgh,

67 Pa. D. & C. 4th 393

(2004). In
A.L.M., the plaintiffs alleged that they were sexually abused by priests when they were
minors between 1965 and 1982. A.L.M., 68 Pa. D. & C. 4th at 114-15. In 2004, they filed
suit against the diocese and the bishop but not against the offending priests. A.L.M., 68 Pa.
D. & C. 4th at 114-15. The plaintiffs maintained that they were unable to discover that the
diocese was a cause of their injuries until 2002 when representatives of the diocese disclosed
that they had knowledge of prior incidents of child sexual abuse by the clergy members.
61
A.L.M., 68 Pa. D. & C. 4th at 115. The plaintiffs' claims were not based on the vicarious
liability of an employer. A.L.M., 68 Pa. D. & C. 4th at 124.
The A.L.M. court held that there was a factual issue concerning when the plaintiffs
knew or should have known that the defendants were a cause of their harm. A.L.M., 68 Pa.
D. & C. 4th at 124. The court stated, "Although the plaintiffs knew of their injuries and of
the priests who abused them many years ago, if the plaintiffs' allegations are correct, a
question remains as to when the plaintiffs knew or had reason to know that the defendants
were also a cause of their harm." A.L.M., 68 Pa. D. & C. 4th at 124. "Based on the
allegations in the complaints, this did not occur until 2002, when disclosures by church
officials alerted the plaintiffs to a conspiracy within the church to conceal sexual abuse
against minors." A.L.M., 68 Pa. D. & C. 4th at 125.
Similarly, in Matthews, the plaintiff alleged that he was sexually abused by a priest
in 1989 when he was 12 years old. Matthews, 67 Pa. D. & C. 4th at 395. In 2004, he
brought a lawsuit against his diocese after learning that the diocese had a policy of shielding
and protecting priests engaged in child sexual abuse. Matthews, 67 Pa. D. & C. 4th at 395.
He alleged that prior to that time, he had no reason to suspect that the diocese would have
permitted the priest to continue to minister once the diocese discovered that the priest had
a history of sexually molesting children. Matthews, 67 Pa. D. & C. 4th at 395. The court
noted that the plaintiff's claims were not based on a theory of respondeat superior.
Matthews, 67 Pa. D. & C. 4th at 395. Instead, the claims were based on allegations that,
after the diocese had notice of complaints concerning the priest molesting other children, it
allowed the priest to continue to serve at the plaintiff's church, ministering to minor
parishioners. Matthews, 67 Pa. D. & C. 4th at 395-96.
The Matthews court held that a jury should decide the issue of when the plaintiff knew
or should have known of his cause of action. Matthews, 67 Pa. D. & C. 4th at 407. The
62
court rejected Cevenini's holding that, as a matter of a law, at the time of the abuse, a
plaintiff should have reason to suspect that the diocese may also have independent
responsibility for the abuse. The court did not find Cevenini's rationale to be persuasive
because "the employer is a church which the plaintiff attends and the employee is engaging
in activity that may be reasonably viewed as conduct that the church could never tolerate."
Matthews, 67 Pa. D. & C. 4th at 407. The Matthews court stated, "A jury may find that there
is a loud ring of truth to plaintiff's statement that he and his family never approached
Diocesan officials to ask whether they had knowingly assigned to their church, to work
directly with the parishioners, including young boys, a priest with a history of sexually
molesting children, because it would never cross their minds that the church would do so."
Matthews, 67 Pa. D. & C. 4th at 407. The court emphasized that reasonable minds could
differ and that the jury was not required to find that the plaintiff and his family should have
considered the possibility that the diocese knowingly assigned a pedophile as their church's
priest. Matthews, 67 Pa. D. & C. 4th at 407.
We find the reasoning in A.L.M. and Matthews to be persuasive under the facts of the
present case. Similar to the facts in A.L.M. and Matthews, Wisniewski's claims against the
Diocese were not based on respondeat superior but were based on the allegations that the
Diocese knowingly installed a pedophile priest at the Salem parish. In addition, similar to
A.L.M. and Matthews, the jury in the present case was entitled to find that Wisniewski had
no reason to suspect that the Diocese intentionally assigned to the Salem parish a priest with
a history of child sexual abuse.
As noted above, in Chicago Park District, the Illinois Supreme Court held that the
City of Chicago had no reason to suspect that its fiduciary, a city alderman, "had entered into
a scheme of bribery and fraud with the defendants" and that "[t]o hold that the City was
obliged to search for misfeasance of its duly elected public official, absent a prior indication
63
of wrongdoing, would require it to presume unfaithfulness on the part of its fiduciary."
Chicago Park District,

78 Ill. 2d at 562-63

. Likewise, in the present
case, the evidence was sufficient for the jury to conclude that Wisniewski was under no
obligation to search for wrongdoing by the Diocese when Kownacki was engaged in
activities that may be reasonably viewed as conduct that the Diocese would never tolerate.
The jury was entitled to find that Wisniewski was not required to presume such
unfaithfulness on the part of the Diocese. Therefore, the trial court properly submitted the
question of when W isniewski is deemed to have discovered his claim to the jury as a factual
issue, rather than deciding the issue in the Diocese's favor as a matter of law. See also
Turner v. Roman Catholic Diocese of Burlington, Vermont,

2009 VT 101

, ¶56,

987 A.2d 960

(the issue of whether the plaintiff was on inquiry notice of the diocese's potential liability of
church leadership was an issue for the jury).
Furthermore, as noted above, there are two prongs of the factual analysis for when
Wisniewski is deemed to have discovered his claim. With respect to the first prong of the
definition instruction concerning when W isniewski is deemed to have discovered his cause
of action, the only evidence presented to the jury in the present case concerning when
Wisniewski knew or should have known that he sustained an injury came from Dr. Peterson.
The trial court in the present case would have erred if it had taken this factual decision away
from the jury and decided the issue as a matter of law by granting the Diocese's motion for
a judgment n.o.v.
The Diocese also cites Clay v. Kuhl,

189 Ill. 2d 603

727 N.E.2d 217

 (2000), and
Parks v. Kownacki,

193 Ill. 2d 164

737 N.E.2d 287

 (2000), in support of its argument. We
believe that Clay and Parks are distinguishable from the present case.
In Clay, the plaintiff was born in 1964, and she alleged that a clergyman began
sexually abusing her in 1972 or 1973 and continued abusing her for seven years. Clay, 189
64
Ill. 2d at 605,

727 N.E.2d at 219

. In January of 1996, the plaintiff filed a complaint against
the clergyman and the religious order that had hired him. Clay,

189 Ill. 2d at 605

727 N.E.2d at 219

. Similar to the present case, the plaintiff in Clay alleged that the religious
order had notice of similar misconduct committed by the clergyman but failed to take any
steps to prevent the abuse she endured. Clay,

189 Ill. 2d at 605

727 N.E.2d at 219

. The
supreme court held that, as a matter of law, the plaintiff's allegations were untimely. Clay,

189 Ill. 2d at 609-10

.
In Clay, the plaintiff's complaint alleged that the plaintiff's life was on a "tragic
course" and that she did not realize that it was based, at least in part, on the abuse. Clay,

189 Ill. 2d at 609

. In ruling that the plaintiff's action was untimely as a matter
of law, the court noted that the "plaintiff had sufficient information about her injury and its
cause to require her to bring suit long before the date of discovery alleged in the complaint."
Clay,

189 Ill. 2d at 610

. The court held that the plaintiff's alleged failure
to fully discover the nature of her injuries was insufficient to delay the running of the
limitations period. Clay,

189 Ill. 2d at 610

.
The Clay court distinguished the plaintiff's claim from tort actions arising from
exposure to asbestos. Clay,

189 Ill. 2d at 612

. The court stated that there
were "substantial distinctions between cases involving exposure to asbestos or other
dangerous substances, in which the risk of harm is not immediately apparent, and cases
involving events that give rise to an immediate awareness of injury." Clay,

189 Ill. 2d at 612

. The court concluded that in asbestos cases, " 'the plaintiffs did not
discover that they suffered any injury until long after the tortious conduct occurred.' "
(Emphasis in original.) Clay,

189 Ill. 2d at 612

 (quoting Golla v.
General Motors Corp.,

167 Ill. 2d 353

, 367,

657 N.E.2d 894

, 901 (1995)).
The facts of the present case are distinguishable from Clay because, in Clay, the
65
plaintiff alleged that she suffered from subsequent psychological problems as a result of the
abuse but merely failed to realize a causal connection between the problems and the abuse.
Clay,

189 Ill. 2d at 609-10

. In the present case, Wisniewski did not
suffer any psychological problems until 2002. His life was not on a "tragic course" as was
alleged in the complaint in Clay. Accordingly, the facts of the present case are more
analogous to those cases noted by the Clay court in which the plaintiffs did not discover any
injury until long after the tortious conduct occurred. The facts of the present case were
certainly close enough for reasonable minds to differ. Furthermore, the Clay decision does
not analyze any facts in that case relevant to the second prong of the determination of when
a plaintiff is deemed to have discovered his claim. Under the second prong, for the reasons
discussed above, there was sufficient evidence presented in the present case for the jury to
determine the factual issue of when Wisniewski knew or should have known that the
Diocese's wrongful conduct cased his injuries.
Accordingly, we find Clay to be distinguishable. A court of review "should not usurp
the function of the jury and substitute its judgment on questions of fact fairly submitted,
tried, and determined from the evidence which did not greatly preponderate either way."
Maple v. Gustafson,

151 Ill. 2d 445

, 452-53, 603 N .E.2d 508, 512 (1992). We cannot
"reweigh the evidence and set aside a verdict merely because the jury could have drawn
different inferences or conclusions, or because the court feels that other results are more
reasonable." Maple,

151 Ill. 2d at 452

603 N.E.2d at 512

.
Likewise, Parks is distinguishable from the present case. In Parks, the plaintiff was
the 14-year-old girl we described in the background section above, Gina, who was abused
by Kownacki when he was the priest in St. Francisville and in Washington Park in the early
1970s. In 1995, Gina filed a lawsuit against Kownacki and the Diocese, and the defendants
raised the statute of limitations and the statute of repose as a defense to Gina's claim. Parks,
66

193 Ill. 2d at 167

737 N.E.2d at 289-90

. The trial court dismissed Gina's complaint as
untimely under both the statute of limitations and the statute of repose. Parks,

193 Ill. 2d at 167

737 N.E.2d at 289-90

.
In determining when the plaintiff knew or reasonably should have known that she
sustained an injury, the Parks court noted as follows: "While she alleges that she did not
know that the sexual relationship was wrong, it is clear from her actions–telling her parents,
reporting Kownacki to [the bishop]–that she knew that Kownacki had wronged her." Parks,

193 Ill. 2d at 177

737 N.E.2d at 294-95

. The court stated, "Although plaintiff was not aware
of her post[]traumatic stress disorder until recently, one particular injury that plaintiff claims,
the forced abortion, obviously was apparent when plaintiff went to the hospital and was
given dilation and curettage." Parks,

193 Ill. 2d at 177-78

737 N.E.2d at 295

.
In the present case, however, the only evidence presented at the trial concerning when
Wisniewski discovered his injuries came from Dr. Peterson, who testified that Wisniewski
did not begin suffering posttraumatic stress disorder until 2002. Unlike Parks, in the present
case, there was no evidence that Wisniewski suffered from any physical injuries as a result
of the abuse.
We do not believe that the Clay or Parks decisions allow us to set aside the jury's
finding of fraudulent concealment in the present case. Under the facts presented at the trial,
viewed in the light most favorable to Wisniewski, the jury could have concluded that the
Diocese, through its officers, fraudulently concealed Wisniewski's claim against it by its
silence, as defined under the second prong of the fraudulent concealment definition
instruction. The jury was entitled to find that Wisniewski timely brought his cause of action
against the Diocese within five years after discovering his cause of action in 2002. See 735
ILCS 5/13-215 (West 2008). We cannot conclude that "all of the evidence, when viewed in
its aspect most favorable to [Wisniewski], so overwhelmingly favors [the Diocese] that no
67
contrary verdict based on that evidence could ever stand" (Pedrick v. Peoria & Eastern R.R.
Co.,

37 Ill. 2d 494

, 510,

229 N.E.2d 504

, 513-14 (1967)). Accordingly, we must affirm the
circuit court's denial of the Diocese's motion for a judgment n.o.v. on the issue of the
Diocese's fraudulent concealment and the timeliness of Wisniewski's claim under the statute
of repose.
(2)
Circuit Court's Finding of Equitable Estoppel and Equitable Tolling
When the circuit court denied the Diocese's motion for a summary judgment, it ruled
that it would separately determine the factual issues relevant to the application of equitable
estoppel and equitable tolling. See Vaughn v. Speaker,

126 Ill. 2d 150

, 167,

533 N.E.2d 885

,
892 (1988) ("the estoppel issue should be determined by a trier of fact other than the jury
which may determine the merits of the negligence action" and "may be determined by the
circuit court"). While the jury deliberated on the issues of fraudulent concealment, liability,
and damages, the circuit court, "after considering all the testimony and evidence" and
"assessing the credibility of witnesses," entered an order finding that Wisniewski's complaint
was "not barred by the statute of limitations or statute of repose based on equitable estoppel
and equitable tolling having been established by clear and convincing evidence." The circuit
court found that W isniewski proved equitable estoppel and equitable tolling by clear and
convincing evidence. On appeal, the Diocese takes issue with these findings.
However, we have already determined that the jury properly decided the issue of
fraudulent concealment. Equitable estoppel and equitable tolling are alternative theories for
tolling the statute of repose. Therefore, we need not separately analyze the circuit court's
finding of equitable estoppel and equitable tolling.
(B)
Statute of Limitations
68
Wisniewski raised the fraudulent concealment statute in response to the Diocese's
affirmative defense under the applicable statute of limitations. The jury found in
Wisniewski's favor on the issue of fraudulent concealment, and for the reasons we discussed
above, we affirm the circuit court's denial of the Diocese's request for a judgment n.o.v. on
the issue of fraudulent concealment.
As an alternative argument, the Diocese asserts that, under the statute of limitations
and the common law discovery rule, Wisniewski's claim expired in 1981, two years after he
turned 18. See 735 ILCS 5/13-211 (West 2008); Clay,

189 Ill. 2d at 607-08

727 N.E.2d at 220-21

. The Diocese argues, therefore, that the circuit court should have granted it a
judgment n.o.v. on the statute of limitations issue. We disagree. We do not believe that the
Diocese was entitled to a judgment in its favor as a matter of law under the applicable statute
of limitations and the common law discovery rule.
In order to analyze the Diocese's argument that Wisniewski's claim was untimely
under the statute of limitations, we must first determine which particular statute of limitations
applies to Wisniewski's claim. We believe that the general statute of limitations applicable
to personal injury claims and the common law discovery rule apply to Wisniewski's claim.
Prior to January 1, 1991, claims of personal injury resulting from childhood sexual
abuse were governed by the general statute of limitations applicable to personal injury
claims. Clay v. Kuhl,

189 Ill. 2d 603

, 608,

727 N.E.2d 217

, 220-21 (2000). On January 1,
1991, the legislature enacted a two-year statute of limitations for childhood sexual abuse
cases that incorporated the common law "discovery rule." Benton v. Vonnahmen,

288 Ill. App. 3d 199

, 206,

679 N.E.2d 1270

, 1275 (1997) (section 13-202.2(b) "codifies [the]
common law discovery rule"). Under its express terms, this statute of limitations does not
begin to run until the victim "discovers or through the use of reasonable diligence should
discover" that the abuse occurred and that the abuse caused the personal injury. Ill. Rev.

69 Stat. 1991

, ch. 110, par. 13-202.2(b).
On July 24, 2003, the legislature lengthened the statute of limitations for childhood
sexual abuse claims and expanded on the statute's discovery rule language. After the 2003
amendment, section 13-202.2(b) of the Code provided that actions for damages for personal
injury based on childhood sexual abuse must be commenced within 10 years of the abused
person's eighteenth birthday or "within 5 years of the date the person abused discovers or
through the use of reasonable diligence should discover both (i) that the act of childhood
sexual abuse occurred and (ii) that the injury was caused by the childhood sexual abuse."
735 ILCS 5/13-202.2(b) (West 2008). 4 Section 13-202.2(b) further states, "Knowledge of
the abuse does not constitute discovery of the injury or the causal relationship between any
later-discovered injury and the abuse." 735 ILCS 5/13-202.2(b) (West 2008).
In the present case, however, if the statute of limitations expired on W isniewski's
cause of action under the common law discovery rule, it did so in 1981, prior to the
enactment of section 13-202.2(b) of the Code. Accordingly, in analyzing the timeliness of
Wisniewski's claims under the relevant statute of limitations, we will apply the general
statute of limitations applicable to personal injury claims and the common law discovery
rule. See Diocese of Dallas,

234 Ill. 2d at 409

917 N.E.2d at 484

.
The supreme court has construed the common law discovery rule to activate the
running of the statute of limitations when a person knows or reasonably should know of his
injury and also knows or reasonably should know that it was wrongfully caused. Golla,

167 Ill. 2d at 360-61

. The question of when the discovery rule activates the
running of the statute of limitations is ordinarily a question of fact. County of Du Page v.
Graham, Anderson, Probst & White, Inc.,

109 Ill. 2d 143

, 153-54,

485 N.E.2d 1076

, 1080
__________________
4
Section 13-202.2(b) was amended on January 1, 2011, to change 5 years to 20 years.
Pub. Act 96-1093, §5, eff. Jan. 1, 2011.
70
(1985).
The statute of limitations and common law discovery issues are presented to us in the
present case by way of the denial of a motion for a judgment n.o.v. As we noted above, in
order to be entitled to a judgment n.o.v., the movant has to establish that "all of the evidence,
when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant
that no contrary verdict based on that evidence could ever stand." Pedrick v. Peoria &
Eastern R.R. Co.,

37 Ill. 2d 494

, 510,

229 N.E.2d 504

, 513-14 (1967). In the present case,
the evidence was not so overwhelmingly in favor of the Diocese on the factual issues
involving the statute of limitations and common law discovery rule that the jury's verdict
cannot stand. Accordingly, we must affirm the circuit court's denial of the motion for a
judgment n.o.v. on those factual issues.
In the present case, as noted above, the jury was asked to decide first whether
Wisniewski brought his claim within five years of discovering his claim before it could
consider the Diocese's liability and damages. The jury instructions further stated that
Wisniewski is deemed to have discovered his claim when he knew or should have known that
he sustained an injury and knew or should have known that his injury was caused by
wrongful conduct by the Diocese. This definition instruction was identical to the definition
of the common law discovery rule. See Golla,

167 Ill. 2d at 360-61

(the
effect of the common law discovery rule is to "postpone the commencement of the relevant
statute of limitations until the injured plaintiff knows or reasonably should know that he has
been injured and that his injury was wrongfully caused"). The jury found that W isniewski
brought his claim within five years of discovering his claim as defined in the jury
instructions. Wisniewski filed his claim against the Diocese in October 2002, and the only
evidence Wisniewski presented concerning when he first learned of his injuries and of the
Diocese's wrongful conduct was that he discovered them in 2002. Accordingly, by ruling
71
in his favor on the issue of fraudulent concealment, the jury must have found that
Wisniewski filed his claim the same year he discovered his cause of action.
In support of its argument that it was entitled to a judgment as a matter of law under
the statute of limitations, the Diocese cites Parks and Clay. For the reasons noted above,
however, those cases are distinguishable from the facts of the present case. Unlike Parks and
Clay, the only evidence presented to the jury in the present case was that Wisniewski was
not aware of any injury as a result of the Diocese's wrongful conduct until 2002, the year he
filed his claim. This evidence presented a question of fact for the jury to decide concerning
the application of the common law discovery rule. Therefore, we must affirm the circuit
court's denial of the Diocese's motion for a judgment n.o.v. on the statute of limitations issue.
II.
Legal Sufficiency of the Claims
The Diocese also argues that the circu it court should have granted its motion for a
judgment n.o.v. because W isniewski's claims against the Diocese were legally insufficient.
The Diocese argues that it did not owe any duty to Wisniewski and, therefore, cannot be
found to have breached any such duty. We disagree. The Diocese's argument that it did not
owe any duty to W isniewski is based on the following incorrect assertion in its brief: "Illinois
courts have found that there is no duty or special relationship between a parishioner and his
or her pastor, church, or church administration."
As noted above, courts have held that Illinois does not recognize a cause of action for
"clergy malpractice" because those actions typically require the courts to interpret religious
tenets and that analysis would violate the free exercise clause of the first amendment.
However, Illinois allows judicial scrutiny of the actions of clergy that "[do] not implicate
judicial assessment of the tenets of a particular religion or a determination of whether a
particular litigant has adhered to those tenets." Dausch,

 (Ripple, J.,
72
concurring in part and dissenting in part). Under those circumstances, the sole inquiry is
whether the individual has engaged in conduct that the state has deemed harmful. Dausch,

 (Ripple, J., concurring in part and dissenting in part). In other words, "[t]ort
claims for behavior by a cleric that does not require the examination of religious doctrine are
cognizable." Dausch,