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                              Appellate Court                          Date: 2017.03.31
                                                                       09:59:00 -05'00'




                   Doe v. Carlson, 2017 IL App (1st) 160536



Appellate Court   JANE DOE, Plaintiff-Appellant, v. CHERIE CARLSON, Defendant-
Caption           Appellee.



District & No.    First District, Second Division
                  Docket No. 1-16-0536



Filed             February 7, 2017



Decision Under    Appeal from the Circuit Court of Cook County, No. 13-L-13466; the
Review            Hon. John P. Callahan, Judge, presiding.



Judgment          Affirmed.



Counsel on        Heath & Heath, P.C., of Naperville (Sharon L. Heath and Timothy W.
Appeal            Heath, of counsel), for appellant.

                  Law Offices of Michael P. Schmiege, of Hinsdale (Michael P.
                  Schmiege, of counsel), for appellee.



Panel             JUSTICE MASON delivered the judgment of the court, with opinion.
                  Presiding Justice Hyman and Justice Neville concurred in the
                  judgment and opinion.
                                             OPINION

¶1       Plaintiff Jane Doe appeals an order dismissing her November 2013 complaint alleging
     negligence, civil battery, and intentional infliction of emotional distress against defendant,
     Cherie Carlson, on the basis that the statute of limitations had expired. For the reasons that
     follow, we affirm.

¶2                                         BACKGROUND
¶3       This case arises from Cherie Carlson’s alleged sexual abuse of Jane Doe, beginning when
     Doe was 16 years old. In her deposition, Doe, who was born in September 1979, testified that
     she belonged to the North Side Gospel Church and, through the church, became a member of
     the Approved Workmen Are Not Ashamed (AWANA) club at the age of five. Beginning at the
     age of 11 or 12, Doe attended the AWANA overnight camps in Wisconsin for approximately
     two weeks every summer.
¶4       Carlson was a leader at the church in charge of the high school AWANA youth group. Doe
     met Carlson when Doe was 12 or 13, but the two did not have regular contact until Doe joined
     the high school youth group when she was 14 years old. At that time, Doe saw Carlson at youth
     group meetings once a week, at church on Sundays, and for sporadic extracurricular activities.
¶5       In the summer of 1996, when Doe was 16, she attended the AWANA overnight camp,
     where she was one of several youth group leaders for the younger members, and Carlson was
     in charge of the leaders. Carlson told Doe during a series of conversations that she was
     interested in pursuing a “discipleship” or mentor-mentee relationship with Doe. Doe
     understood this to mean that Carlson wanted to read the Bible together and act as her teacher
     and spiritual advisor. Doe was aware that Carlson previously had a mentor-mentee relationship
     with another youth group leader. Doe had seen the other leader in bed with Carlson at camp in
     the summer of 1993 or 1994, when Doe was 12 or 13. After Doe agreed to the discipleship,
     Carlson began lying in bed with Doe, cuddling her, and giving her back rubs.
¶6       When Doe returned from camp in August 1996, Carlson invited her to Carlson’s parent’s
     house to watch a movie, at which time Carlson fondled her. Doe cried and pulled away, and
     Carlson, also crying, apologized. Doe testified that she felt ashamed, surprised, and scared
     because she knew the touching was wrong. Although Carlson assured Doe it would not happen
     again, approximately one month later, in Carlson’s car, Carlson moved her hand up Doe’s leg
     and kissed Doe. Again, Doe cried and Carlson apologized. From September to December
     1996, the abuse occurred on at least 10 occasions. In early 1997, Doe testified that Carlson
     sexually penetrated her in Carlson’s parent’s house, which Doe knew was “inappropriate.”
     Over the next several years, Carlson continued to abuse Doe, often taking her to hotels when
     Carlson’s parents were home.
¶7       Doe testified that the sexual abuse became less frequent when she began college and
     stopped altogether in 1999 when Doe was 20, because Doe “couldn’t take it anymore” and felt
     Carlson was no longer interested in being her spiritual advisor, but was using her for sex. At no
     point did Doe feel that her relationship with Carlson was consensual.
¶8       Doe did not report Carlson’s behavior while it was occurring because she was aware that
     when the other youth group leader made allegations against Carlson, the leader and her family



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       left the church, while Carlson remained. In addition, Carlson threatened to kill herself if Doe
       told anyone about the abuse.
¶9          In 1999, after the abuse had stopped, Doe received a phone call from a woman named
       Dianna, who asked Doe if Carlson ever tried to touch her. Doe did not answer the question
       directly, but later called Dianna’s cousin, Claire, and told her about Carlson’s abuse toward her
       because she was concerned about Dianna. Specifically, Doe told Claire that Carlson was
       “sexually inappropriate” with her in the hopes that Claire would “warn” her cousin. At around
       this same time, Doe began experiencing chronic anxiety, sadness, and nightmares. However,
       Doe testified that she did not connect these feelings to Carlson’s abuse until more than a
       decade later, when in 2012 she told her husband what she had suffered and began therapy. Her
       therapist diagnosed her with post-traumatic stress disorder arising out of the abuse.
¶ 10        Doe filed suit against Carlson, among others, on November 15, 2013. Carlson moved to
       dismiss the suit on the grounds that the statute of limitations had expired in 2001, two years
       after Doe knew or should have known both that the abuse occurred and that her injury was
       caused by the abuse. See 735 ILCS 5/13-202.2(b) (West 1996). The trial court agreed and
       granted Carlson’s motion.

¶ 11                                            ANALYSIS
¶ 12       The sole issue on appeal is the timeliness of Doe’s suit against Carlson. The relevant statute
       of limitations provides that “An action for damages for personal injury based on childhood
       sexual abuse must be commenced within 2 years of the day 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 1996). The statute further provides that the limitations period under
       subsection (b) does not begin to run until the victim of the abuse is 18 years old. 735 ILCS
       5/13-202.2(d) (West 1996).
¶ 13       The trial court granted Carlson’s motion to dismiss the complaint as untimely pursuant to
       section 2-619(a)(5) of the Code of Civil Procedure (Code) (735 ILCS 5/2-619(a)(5) (West
       2012)), and our review of that dismissal order is de novo (Solaia Technology, LLC v. Specialty
       Publishing Co., 221 Ill. 2d 558, 579 (2006)). Ordinarily, the issue of when the statute of
       limitations begins to run under the discovery rule is one of fact, but when the answer is clear
       from the pleadings, we may decide this issue as a matter of law. Softcheck v. Imesch, 367 Ill.
       App. 3d 148, 156 (2006). Significantly, we accept as true all well-pleaded facts in the
       plaintiff’s complaint and draw reasonable inferences from those facts in favor of the plaintiff
       as the non-moving party. Chicago Title Insurance Co. v. Teachers’ Retirement System, 2014
       IL App (1st) 131452, ¶ 13.
¶ 14       Carlson argues that Doe knew of the abuse and knew or should have known that her injury
       was caused by the abuse no later than 1999, shortly after she ended her relationship with
       Carlson. Therefore, the limitations period expired two years later in 2001, according to
       Carlson. In support, Carlson cites Clay v. Kuhl, 189 Ill. 2d 603 (2000), and Parks v. Kownacki,
       193 Ill. 2d 164 (2000). Significantly, both cases address sexual abuse that occurred prior to the
       time the legislature enacted a separate statute of limitations for actions involving childhood
       sexual abuse. Before 1991, the applicable statute of limitations for abuse cases was two years,
       the same as for all cases involving personal injury. See Ill. Rev. Stat. 1989, ch. 110, ¶ 13-202.
       A separate section of the pre-1991 Code provides that the two-year period for bringing a cause

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       of action for personal injury does not begin to run until the plaintiff reaches the age of 18. Ill.
       Rev. Stat. 1989, ch. 110, ¶ 13-211. In both Clay and Parks, the plaintiffs waited well over two
       years past the time of the abuse to file their complaints, but both plaintiffs claimed the benefit
       of the discovery rule. Clay, 189 Ill. 2d at 607-08; Parks, 193 Ill. 2d at 173-74. Pursuant to the
       discovery rule, “a party’s cause of action accrues when the party knows or reasonably should
       know of an injury and that the injury was wrongfully caused.” Clay, 189 Ill. 2d at 608 (citing
       Knox College v. Celotex Corp., 88 Ill. 2d 407, 415 (1981)).
¶ 15       In Clay, the plaintiff, who filed suit in 1996, admitted that she knew of the abuse at the time
       it occurred in the 1970s, but she did not realize her “ ‘sexual encounters’ ” with the defendant
       had caused her later psychological injuries until June 1994. Id. at 605, 609. But the supreme
       court held that application of the discovery rule did not save the plaintiff’s complaint, which
       was otherwise untimely. Id. at 610. The court’s decision rested on the fact plaintiff “[did] not
       argue that she repressed her memories of the abuse” and that she “was aware of the abuse at the
       time it occurred.” Id. The court went on to hold that “Illinois law presumes an intent to harm
       and a resulting injury” from the “misconduct” committed by the defendant. Id. at 611; see also
       Softcheck, 367 Ill. App. 3d at 156 (“As a matter of law, adults are charged with the knowledge
       that sexual contact between 9- to 14-year-old boys and an adult is not only harmful and wrong
       but also that it results in injury.”). Accordingly, the plaintiff’s complaint was untimely, since
       she knew of the abuse (which was tantamount to knowing she was injured) and that her injury
       was wrongfully caused by the time she turned 18 in 1983, but did not file suit until 14 years
       later. Clay, 189 Ill. 2d at 610-12.
¶ 16       The supreme court reached the same conclusion in Parks. There, the plaintiff likewise
       alleged that, while she had not repressed memories of the abuse by her priest, she did not
       connect her post-traumatic stress disorder diagnosis with that abuse until over 20 years after
       the abuse ended. Parks, 193 Ill. 2d at 177. Moreover, she alleged that at the time the abuse was
       occurring, she did not know that the sexual relationship between her and her priest was wrong.
       Id. The supreme court, citing Clay, held that the discovery rule did not save the plaintiff’s
       claims. Id. at 177-78. The court pointed out that, despite the plaintiff’s allegations, her actions
       of reporting the abuse to her parents and a church leader demonstrated that she knew the
       defendant had wronged her. Id. at 177. Further, the plaintiff reasonably should have known
       that a portion of her injury—namely, the abortion the defendant forced her to obtain—was
       caused by the abuse. Id. at 177-78. The court concluded that the facts regarding plaintiff’s
       knowledge were stronger than those in Clay and affirmed the dismissal of the plaintiff’s
       complaint as time-barred. Id. at 178.
¶ 17       Doe disputes the applicability of Clay and Parks, pointing out that they do not interpret
       section 13-202.2 of the Code but instead apply the common law discovery rule. But Doe
       overlooks the supreme court’s express finding in Clay that section 13-202.2 of the Code
       “codif[ied] the common law discovery rule for actions involving childhood sexual abuse.”
       Clay, 189 Ill. 2d at 609. As such, we are hard-pressed to find inapposite cases applying that
       rule.
¶ 18       Significantly, Doe’s allegations bear striking similarities to those made by the Clay and
       Park plaintiffs. First, Doe does not allege her memories of the abuse were repressed. Further,
       while she, too, denied awareness of the fact that the contact between her and Carlson was
       criminal, she admitted that she knew the contact was “wrong” and “inappropriate” at the time it
       was occurring. Doe elaborated that she did not believe her encounters with Carlson amounted

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       to a consensual dating or sexual relationship. It is well-settled that under the discovery rule a
       plaintiff need not appreciate the criminality of the conduct at issue to be charged with
       knowledge that her injury was wrongfully caused. See Mitsias v. I-Flow Corp., 2011 IL App
       (1st) 101126, ¶ 24 (citing Knox, 88 Ill. 2d at 415-16). Finally, just as the plaintiff in Parks,
       Doe, at the age of 20, informed a third party that Carlson had been “sexually inappropriate”
       with her. Indeed, Doe had considered reporting Carlson’s conduct earlier, but decided against
       it after remembering that another girl whom Carlson mentored made similar allegations that
       Carlson “inappropriately touch[ed]” her, only to end up leaving the church with her family.
       Doe also recalled that her youth group leader at the time ordered the members not to discuss
       those allegations. Taken together, and contrary to her argument on appeal, Doe’s testimony
       establishes that she knew of Carlson’s abuse at the time it occurred.
¶ 19        Turning then to the issue of when Doe knew that her injuries were caused by the sexual
       abuse (the second prong of section 13-202.2(b)), pursuant to Clay, knowledge of injury is
       presumed where the victim was aware of the sexual abuse as it was occurring (Clay, 189 Ill. 2d
       at 611-12). And even assuming arguendo that this presumption of knowledge of injury is
       inapplicable, Doe’s testimony nevertheless reveals that she had actual knowledge of the cause
       of at least a portion of her injuries when they occurred.
¶ 20        In Doe’s complaint, she states a claim for, inter alia, intentional infliction of emotional
       distress against Carlson, alleging that “as a direct result of [Carlson’s] conduct” she “suffered
       and will continue to suffer *** severe and permanent emotional distress, physical
       manifestations of emotional distress, embarrassment, and loss of self-esteem, humiliation and
       psychological injuries.” All these are injuries Doe testified she suffered immediately following
       the abuse. For example, Doe testified that after Carlson fondled her, Doe began crying and felt
       shame, fear, and embarrassment. These same reactions and feelings occurred whenever
       Carlson abused her. To be sure, Doe may not have realized that the persistent nightmares and
       ongoing emotional problems she experienced in her 20s were likewise attributable to the
       abuse, but it is not necessary that a plaintiff recognize the full extent of his or her injuries
       before bringing suit. See, e.g., Golla v. General Motors Corp., 167 Ill. 2d 353, 367 (1995).
       Thus, regardless of the applicability of the Clay presumption, the evidence reveals that Doe
       actually knew that a portion of her injury was caused by the abuse at the age of 16. And
       pursuant to section 13-202.2(d), when Doe reached the age of 18, the statute of limitations
       began to run. See 735 ILCS 5/13-202.2(d) (West 1996). The statute expired two years later, in
       1999, well before Doe filed her complaint against Carlson in 2013. The circuit court’s order
       dismissing Doe’s complaint as time-barred is therefore affirmed.

¶ 21      Affirmed.




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