Delayed Discovery for Sexual Abuse

Published December 2013
by Ted Babbitt

In Hearndon v Graham, 767 So. 2d 1179 (Fla. 2000), the Florida Supreme Court applied the delayed discovery doctrine to allow a plaintiff to bring an intentional tort action against her stepfather for sexual abuse that she suffered as a child.  In that case, the plaintiff alleged that the trauma itself caused suppression of her memory for many years resulting in traumatic amnesia which prevented the filing of the lawsuit within the applicable statute of limitations.

In Cisko v. Diocese of Steubenville, 38 Fla. L. Weekly D1902 (Fla. 3rd DCA, Sept. 4, 2013) the Third District Court of Appeals declined to apply the delayed discovery doctrine to an allegation of negligence against a Catholic Diocese for negligent supervision of two priests who allegedly committed physical and sexual abuse on the plaintiffs over 40 years before the filing of the suit.  As in Hearndon, the plaintiffs in Cisko alleged traumatic amnesia which they claimed blocked their memory of the abuse which had occurred in 1966 and 1967 until May of 2005.

The Third District relied upon the Supreme Court’s opinion in Davis v. Monahan, 832 So. 2d 708 (Fla. 2002) in which the Hearndon opinion was described as follows:

While we applied the delayed discovery doctrine to causes of action arising out of childhood sexual abuse and repressed memory in Hearndon, we did
so only after considering the unique and sinister nature of childhood sexual abuse . . . .  We also considered the Legislature’s endorsement in amending
section 95.11(7), Florida Statutes (1999), to include intentional torts based on abuse. . . .

In Cisko the Third District points out that as pointed out in Davis, the Legislature has failed to expand its amendment of Fla. Stat. 95.11(7) beyond intentional torts.  The Cisko Court concludes that the Supreme Court’s opinion in Hearndon was both limited to its facts and specifically to claims of childhood sexual abuse amounting to an intentional tort.  The Cisko Court’s reasoning is consistent with the Fourth District’s opinion in Doe v Sinrod, 90 So. 3d 852 (Fla. 4th DCA 2012) which refused to apply the reasoning of Hearndon to an action against a School Board because of sexual abuse by one of its employees.

The opinion of the Supreme Court in Hearndon, supra, provides for the tolling of the statute of limitations in cases of sexual abuse based upon traumatic amnesia.  The District Courts have refused to extend that reasoning beyond causes of action based upon intentional tort.  To the contrary, the Hearndon case has been viewed as limited to its facts and not applicable to causes of action other than intentional torts based upon sexual abuse.

NOTE:  BECAUSE A NUMBER OF PEOPLE HAVE REQUESTED COPIES OF PAST ARTICLES, A COMPILATION OF THESE ARTICLES IS NOW AVAILABLE TO MEMBERS OF THE PALM BEACH COUNTY BAR ASSOCIATION, FREE OF CHARGE, BY CALLING (561) 684-2500.