Coverage and Liability Issues in Sexual Misconduct Claims

MASSACHUSETTSStatute of LimitationsMassachusetts has a three-year limitation period for tort actions.Mass. Gen. Laws ch. 260 § 2A.There is a discovery rule whereby actions for sexual abuse of aminor shall be commenced within three years from the acts allegedto have caused an injury or condition or within three years of the timethe victim discovered or reasonably should have discovered that anemotional or psychological injury or condition was caused by said act,whichever period expires later. Id. at 260 §4C. In order to survive amotion for summary judgment a claimant must show that the natureof the abuse was such that it would cause an objectively reasonableperson to fail to recognize the causal connection between it and theinjuries that it caused. Doe v. Creighton, 786 N.E.2d 1211 (Mass.2003) (Found victim’s delay in filing suit for sexual abuse was notobjectively reasonable and therefore statute of limitations not tolledwhere victim was 16 years old at the time of abuse and the injurieswere immediate and obvious). The discovery rule applies to tortactions against perpetrators and non-perpetrators of the abuse andone need not apprehend the full extent or nature of an injury in orderfor a cause of action to accrue. See Phinney v. Morgan, 654 N.E.2d77 (Mass. App. Ct. 1995); Flanagan v. Grant, 79 F.3d 1 (1st Cir. 1996); See also Ross v. Garabedian, 742 N.E.2d 1046 (Mass. 2001) (Foundsufficient evidence to defeat motion for summary judgment on statuteof limitations issue where it was unclear whether plaintiff perceived acausal connection between a defendant’s misconduct and the allegedpsychological harm).Reporting LawsOtherMass. Gen .Laws Ann. Ch. 119 §51A et. seq.If a tort is committed in the course of any activity carried on toaccomplish directly the charitable purposes of a corporation, trust orassociation, then liability shall not exceed twenty thousand dollarsexclusive of interest and costs. Mass. Ann. Laws ch. 231, § 85K.Sexual assault committed by an employee does not trigger vicariousliability of the employer. Jane Doe v. Purity Supreme, Inc., 422 Mass.563 (Mass. 1996); Worcester Ins. Co. v. Fells Acres Day Sch. Inc.,558 N.E.2d 958 (Mass. 1990); Timpson v. Transamerica Ins. Co., 669N.E.2d 1092 (Mass. App. Ct. 1996). However, an employer may beliable by reason of ratification of the employee’s intentional torts. SeeGagne v. O’Donoghue, 1996 WL 1185145 (Mass. Super. Ct. Jun. 26,1996) (Found evidence to withstand a motion for summary judgmentwhereby diocese may have ratified sexual abuse committed by priestby failing to investigate and discipline).Clerics are not immune from liability for directing or permitting asubordinate to do something that would expose a third party to danger.Leary v. Geoghan, 2000 WL 1473579 (Mass. Super. Ct. Jun. 28,2000); Mendez v. Geoghan, 1999 WL 792202 (Mass. Super. Ct. Aug.2, 1999); Gagne v. O’Donoghue, 1996 WL 1185145 (Mass. Super.Ct. Jun. 26, 1996) (Negligent hiring and supervision claims againstreligious organization arising out of sexual molestation of children bypriest not barred by the First Amendment). Documents from priest’spersonnel file are not protected by the First Amendment or analogousprovisions of the Massachusetts Constitution. Soc’y of Jesus of NewEng. v. Commonwealth, 808 N.E.2d 272 (Mass. 2004), aff’d, 818N.E.2d 559 (Mass. 2004).– 31 –