declining to apply the discovery rule to slander claims
How later courts described this case
- declining to apply the discovery rule to slander claims
Written by the judges who cited it.
The opinion
I N T H E S U P R E M E C O U R T O F T E N N E S S E E
A T K N O X V I L L E
FILED
R E G I N A D A R L E N E H U N T E R ) F O R P U B L I C A T I O N
November 10, 1997
)
) F I L E D : N O V E M B E R 1 0 , 1 9 9 7
Cecil Crowson, Jr.
P l a i n t i f f - A p p e l l a n t ) Appellate C ourt Clerk
) R O A N E C O U N T Y
v . )
) H O N . R U S S E L L E . S I M M O N S , J R . ,
E D B R O W N , J R . ) J U D G E
)
) N O . 0 3 - S - 0 1 - 9 6 0 7 - C V - 0 0 0 7 0
D e f e n d a n t - A p p e l l e e )
F o r P l a i n t i f f - A p p e l l a n t : F o r D e f e n d a n t - A p p e l l e e :
J E R R O L D L . B E C K E R P A T R I C K C . C O O L E Y
K n o x v i l l e , T N K i n g s t o n , T N
J O H N M . M C F A R L A N D
K i n g s t o n , T N
a n d
T H O M A S A . P A V L I N I C
A n n a p o l i s , M D
A s A m i c u s C u r i a e
O P I N I O N
A F F I R M E D B I R C H , J .
2
In this action for damages, the plaintiff, Regina Darlene
Hunter, alleged that as a child she was sexually abused by the
defendant, Ed Brown, Jr., but was unable to file this action prior
to 1993 because she repressed the memory of the abuse. The trial
court found no reason to toll the statute of limitations and granted
the defendant’s motion for summary judgment. The Court of Appeals
affirmed.
The issue before us is whether the discovery rule applies
to affect the accrual of Hunter’s claim. We conclude, after a
thorough examination of the record and a careful consideration of
the arguments, that under the circumstances here presented, the
discovery rule does not apply. Consequently, Hunter’s claim accrued
in 1982, and her action filed July 15, 1993, is untimely.
Accordingly, the order of summary judgment granted to the defendant
is affirmed.
I
Regina Darlene Hunter was born on October 13, 1967, and
she spent the greater portion of her childhood in foster care. In
June 1981, she was placed in the foster home of Mr. and Mrs. Ed
Brown, Jr. According to Hunter, Ed Brown, Jr., began sexually
abusing her in July 1981--a month after her placement in the Brown
home. The abuse progressed from fondling to fairly frequent sexual
intercourse, and Hunter became pregnant in the spring of 1982.
3
When Patricia Martin, the Department of Human Services
caseworker in charge of Hunter’s case, learned of the pregnancy, she
removed Hunter from the Brown home. Martin then arranged for an
abortion at a Knoxville facility, and the pregnancy was terminated
in June 1982.
In addition to the physician who determined Hunter was
pregnant and Martin, Hunter told others of the abuse. At the
physician’s insistence, Hunter told the defendant’s wife that Brown
had impregnated her--this was done while the plaintiff and Mrs.
Brown were still in the physician’s office. In addition, Martin and
Hunter talked with the district attorney general about the abuse.
Hunter has no specific recollection of the conversation with the
district attorney general, and there is no indication that the
complaint was ever investigated. After the abortion, Hunter was re-
located to a group home in Nashville, Tennessee. According to
Hunter, at a time subsequent to the 1982 abortion, she repressed the
memory of it.
Approximately eight years later, in August 1990, Hunter
gave birth to a daughter. The medical records associated with the
birth contain the following references to the 1982 rape and
abortion: “6/27/90 Surgery: abortion - Knox age 15; raped does not
know much about it,” “Abortion - age 15 - raped - doesn’t remember,”
and “PAST HISTORY: Positive only for an abortion at an early age”.
In an affidavit, Hunter states:
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I deny any memory of ever having told anyone
about my abortion in 1982 while under Dr.
Foote’s care in 1990 or at Harriman Hospital in
1990.
In 1992, Hunter became pregnant again. She decided to
abort and returned to the facility where the 1982 pregnancy had been
terminated. She underwent an abortion procedure in June 1992. As
she was recovering from the effects of the anesthesia, Hunter began
to remember the prior abortion. In her affidavit, Hunter stated
that “until I [went] to the Reproductive Health Center in July of
1992, I had completely repressed my first visit to the Center. I
only remembered the details of the abuse and rape when I had been in
therapy with Ms. Schwind.”
In the months following the second abortion, Hunter
participated in therapy sessions with Erika Schwind, a licensed
clinical social worker. With Schwind’s assistance, Hunter recalled
“the extent and type of sexual and physical abuse by Mr. Brown
committed upon me. . . .”
Hunter filed this action on July 15, 1993. She sought
compensatory and punitive damages from Brown for his alleged sexual
conduct toward her. The defendant moved for a judgment on the
pleadings and contended that the suit was barred by the statute of
limitations.1
1
The trial court permitted the introduction of affidavits,
depositions, and medical records and treated the motion as one for
summary judgment.
5
The trial court held that Hunter’s statement that she did
not remember supplying the information found in the medical records
was insufficient to establish a genuine issue of material fact as to
whether in 1990, Hunter remembered the incidents that had occurred
in 1982. The trial court granted the defendant’s motion and
dismissed the case. The intermediate court affirmed.
II
This matter comes to us by way of a motion for judgment on
the pleadings--a motion that the trial court properly treated as a
motion for summary judgment. Because it involves only questions of
law, no presumption of correctness attaches to the trial court’s
decision to grant summary judgment. On appeal, we must freshly
determine whether the requirements of Tenn. R. Civ. P. 56 have been
met. Gonzales v. Alman Constr. Co., 857 S.W.2d 42, 44-45 (Tenn.
App. 1993)(citing Hill v. City of Chattanooga, 533 S.W.2d 311, 312
(Tenn. App. 1975)). In doing so, we must consider the pleadings
and the evidentiary materials in the light most favorable to the
movant's opponent, and we must draw all reasonable inferences in the
opponent's favor. Byrd v. Hall, 847 S.W.2d 208, 210-11 (Tenn.
1993).
As stated, Hunter filed this action on July 15, 1993.
Actions to recover damages for personal injuries must be commenced
“within one (1) year after the cause of action accrued.” Tenn. Code
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Ann. § 28-3-104(a)(Supp. 1996). Thus, if Hunter’s cause of action
accrued on or before July 15, 1992, her claim is barred.2
A cause of action generally accrues when the tort is
complete and injury to the plaintiff has occurred. See McCroskey v.
Bryant Air Conditioning Co., 524 S.W.2d 487, 489-90 (Tenn.
1975)(citing cases). In certain tort actions, however, the accrual
of the cause of action is deferred until the injury is discovered or
in the exercise of reasonable care and diligence, the injury should
have been discovered. Quality Auto Parts Co., Inc. v. Bluff City
Buick Co., Inc., 876 S.W.2d 818, 820 (Tenn. 1994)(declining to apply
the discovery rule to slander claims).
Under the discovery rule, the cause of action accrues and
the statute of limitations begins to run when the injury is
discovered, or in the exercise of due care and diligence, the
plaintiff discovers that he or she has a right of action. Potts v.
Celotex Corp., 796 S.W.2d 678, 680 (Tenn. 1990); McCroskey, 524
S.W.2d at 491. The discovery rule applies only “in cases where the
plaintiff does not discover and reasonably could not be expected to
discover that [she] had a right of action.” Potts, 796 S.W.2d at
680. Further, the limitations period is tolled only during the
period when the plaintiff has no knowledge at all that a wrong has
occurred and, as a reasonable person, was not put on inquiry.
2
Because at the time of the alleged injury Hunter was a minor,
the one-year statute began to run when Hunter reached the age of
eighteen years. Hunter’s eighteenth birthday occurred on October
13, 1985.
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Potts, 796 S.W.2d at 680-81; Hoffman v. Hospital Affiliates, Inc.,
652 S.W.2d 341, 344 (Tenn. 1983).
Hunter insists that she did not discover her injury nor
could she reasonably have discovered it until July 1992, the time of
the second abortion. However, it is not disputed that Hunter
retained her memory of the events in 1982 for some period of time
because she reported the abuse to her social worker who took her to
speak to the district attorney general. Although no prosecution
ever followed, clearly Hunter knew she had been injured and knew the
identity of the perpetrator. The discovery rule simply delays the
accrual of the cause of action until the plaintiff is aware of the
injury. Hunter was aware of the injury and the wrong, at the very
latest, when she had the abortion in 1982. Therefore, the facts in
this case do not fairly raise the issue of repressed memory. We
hold until another day the applicability of this theory to cases of
sexual abuse.
As stated, because Hunter was a minor when the cause of
action accrued, Tenn. Code Ann. § 28-1-106 extended the period
within which Hunter could file an action to one year beyond her
eighteenth birthday. Because this action was not filed until
approximately eight years after Hunter’s eighteenth birthday, it is
time-barred.
The judgment of the Court of Appeals is affirmed. Costs
of this cause are taxed to Hunter for which execution may issue, if
necessary.
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____________________________________
ADOLPHO A. BIRCH, JR., Justice
CONCUR:
Anderson, C.J.
Drowota, Reid, Holder, JJ.
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