#25729-a-JKK

2011 S.D. 79

                           IN THE SUPREME COURT
                                   OF THE
                          STATE OF SOUTH DAKOTA

                                  ****
D.Z. IRON WING,                            Plaintiff and Appellant,

      v.

CATHOLIC DIOCESE OF
SIOUX FALLS; BLUE CLOUD ABBEY;
FR. FRANCIS SUTMUELLER;
OBLATE SISTERS OF THE BLESSED
SACRAMENT; and SR. M. FRANCES,             Defendants and Appellees.


                                  ****

                   APPEAL FROM THE CIRCUIT COURT OF
                     THE SECOND JUDICIAL CIRCUIT
                   MINNEHAHA COUNTY, SOUTH DAKOTA

                                  ****

                     THE HONORABLE BRADLEY G. ZELL
                                Judge

                                  ****

MICHAEL SHUBECK of
Law Offices of Gregory A. Yates
Rapid City, South Dakota

and

REBECCA L. RHOADES of
Manly & Stewart
Newport Beach, California                  Attorneys for plaintiff
                                           and appellant.

                                  ****

                                           ARGUED OCTOBER 04, 2011

                                           OPINION FILED 11/30/11
MICHAEL J. FORD
DYAN J. EBERTS of
Quinlivan & Hughes, PA
St. Cloud, Minnesota                     Attorneys for defendants
                                         and appellees Oblate Sisters.

ROCHELLE SWEETMAN
MICHAEL L. LUCE of
Murphy, Goldammer & Prendergast, LLP
Sioux Falls, South Dakota                Attorneys for defendant
                                         and appellee Catholic Diocese.

ROBERT STICH of
Stich, Angell, Kreidler & Dodge, PA
Minneapolis, Minnesota

and

ERIC C. SCHULTE of
Davenport, Evans, Hurwitz & Smith, LLP
Sioux Falls, South Dakota                Attorneys for defendant and
                                         appellee Blue Cloud Abbey.
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KONENKAMP, Justice

[¶1.]         In October 2008, plaintiff brought suit for sexual abuse committed

more than forty years earlier. He averred that the abuse was perpetrated by a nun

and a priest at a boarding school he attended. Defendants moved for summary

judgment asserting that the limitations period had expired on plaintiff’s claims

because he failed to commence his action “within three years of the act alleged to

have caused the injury or condition, or three years of the time [he] discovered or

reasonably should have discovered that the injury or condition was caused by the

act, whichever period expires later.” See SDCL 26-10-25. In granting summary

judgment for defendants, the circuit court concluded that plaintiff never forgot the

alleged abuse and was aware more than three years before commencing suit that

his anger and hatred stemmed from this abuse. Plaintiff appeals.

                                    Background

[¶2.]         D.Z. Iron Wing attended boarding school at St. Paul’s Indian School in

Marty, South Dakota from first to eleventh grade. More than forty years later, on

October 8, 2008, Iron Wing brought suit against various defendants for sexual

abuse committed by Sister Mary Frances Poitra when he was age ten and by Father

Francis Sutmueller when plaintiff was in high school.1 Sr. Poitra, who died before

this suit was initiated, was a dorm matron in the little boys’ dorm at St. Paul’s.

Iron Wing said that she would take him into her room at night when the rest of the

children were sleeping and “would start fondling [his] genitals which lasted for


1.      Iron Wing, and seven other plaintiffs, brought suit against the Catholic
        Diocese of Sioux Falls, Blue Cloud Abbey, Fr. Francis Sutmueller, Oblate
        Sisters of the Blessed Sacrament, and Sr. Mary Francis Poitra.

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about 15 minutes[.]” These abuses were alleged to have occurred at least ten times

over a three-year period.

[¶3.]        Fr. Francis, Iron Wing said, would call him to his room at 2:00 or 3:00

in the morning, and would tell Iron Wing to lie on the bed. Iron Wing then detailed

how the abuse proceeded:

             He sat down beside me and he started to like rub my forehead.
             He told me I was going to go to sleep. He told me when I woke
             up I wasn’t going to remember anything. But I didn’t go to
             sleep. I just closed my eyes because I was too afraid to go to
             sleep. But once he thought I was asleep, then he took my shorts
             off of me. He started playing with my genitals. He was talking
             to me. While he thought I was asleep, he was talking to me. He,
             he was talking to me and saying things like don’t be afraid
             because I know — I know you are going to like this. I’m not
             going to hurt you.

Iron Wing recounted that Fr. Francis progressed from fondling his genitals to

“sucking on [his] penis.” These abuses were repeated on eight or nine occasions.

[¶4.]        When Iron Wing was in his junior year of high school, he told his

father and stepmother of the abuse. According to Iron Wing, his stepmother

“walked up beside me and she slapped me alongside the head. She said how dare

you talk about those people, those priests, those nuns, how dare you talk about

them like that. She said those are people of God. They don’t do those kinds of

things. She said who are you to go and spread lies. She said you don’t — don’t be

talking like that.” After that, Iron Wing said he “never told anybody.” But he left

St. Paul’s and attended high school in Flandreau, South Dakota.

[¶5.]        During his deposition, defendants asked Iron Wing about his memories

of the abuse and what problems it caused him during his life. Iron Wing testified

that he never forgot what Sr. Poitra and Fr. Francis did to him. He also explained

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that “[t]he main problem it caused with that incident, with that person [Sr. Poitra],

was a lot of hatred for the nuns and that whole order, not just her. A lot of hatred

for the church. That’s basically the main problem that it caused. I don’t trust

them.” He said that Fr. Francis’s abuse caused him to harbor hatred toward the

church and priests. That hatred and anger developed during his junior year of high

school.

[¶6.]        Defendants moved for summary judgment on the ground that Iron

Wing’s claims against all defendants expired more than three years before October

8, 2008. For childhood sexual abuse allegations, “[a]ny civil action . . . shall be

commenced within three years of the act alleged to have caused the injury or

condition, or three years of the time the victim discovered or reasonably should have

discovered that the injury or condition was caused by the act, whichever period

expires later.” SDCL 26-10-25.

[¶7.]        Iron Wing responded that despite his knowledge of the abuse and

knowledge that he had anger toward the church, priests, and nuns, there was no

evidence that he was aware of the causal connection between the alleged abuse and

his injuries. He submitted an affidavit and report from Dr. Jeffery King, a

specialist in cultural psychology. Dr. King opined that Iron Wing did not make the

causal connection between his abuse and injury until early 2009, because his anger

concealed the memories and emotions associated with the abuse. Anger and hatred,

according to Dr. King, were coping mechanisms: “[w]hile these mechanisms are

related to the sexual abuse, it must be understood that these are defenses to protect

him from the emotional and psychological distress caused by the abuse. These


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defenses allowed Iron Wing to distance himself from the direct and raw pain

associated with the abuse.” Dr. King diagnosed Iron Wing with moderate

depression and post traumatic stress disorder.

[¶8.]         In its memorandum decision, the circuit court wrote that Iron Wing

“always remembered the alleged sexual abuse.” The court relied on Iron Wing’s

testimony that he told his father and stepmother about the abuse during his junior

year of high school. The court further found that Iron Wing’s hatred and anger

toward the church, nuns, and priests was an “injury” for the purposes of SDCL 26-

10-25. It concluded that a “reasonably prudent person in Iron Wing’s position would

have been prompted to seek out information regarding the injury, i.e. the hatred for

the church and nuns and the cause of the injury.” Because Iron Wing did not

commence suit until October 8, 2008, the court ruled that Iron Wing’s claim had

expired under the statute of limitations and granted summary judgment dismissing

suit against all defendants.

[¶9.]         Iron Wing appeals. He argues that hatred or anger do not constitute

an “injury” under SDCL 26-10-25. He further contends that there is a genuine issue

of material fact in dispute on whether a reasonably prudent person should have

discovered the causal connection between the injury and the alleged abuse under

Iron Wing’s circumstances. 2



2.      “In summary judgment proceedings, where the defendant asserts the statute
        of limitations as a bar to the action, and presumptively establishes the
        defense by showing the case was instituted beyond the statutory period, the
        burden then shifts to the plaintiff to establish the existence of material facts
        in avoidance of the statute of limitations[.]” Conway v. Conway, 487 N.W.2d
        21, 23 (S.D. 1992) (citations omitted). “It is well settled that ‘“[s]ummary
                                                                      (continued . . . )
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                                Analysis and Decision

[¶10.]        Under SDCL 26-10-25, discovery of alleged abuse alone is insufficient

to start the running of the statute of limitations. Zephier v. Catholic Diocese of

Sioux Falls, 2008 S.D. 56, ¶ 10, 752 N.W.2d 658, 664; One Star v. Sisters of St.

Francis, 2008 S.D. 55, ¶ 13, 752 N.W.2d 668, 675. There must also be evidence that

the victim discovered or reasonably should have discovered the causal connection

between the alleged abuse and the injury or condition. Iron Wing maintains that

there is a genuine issue of material fact in dispute on whether a prudent person

would be put on inquiry notice of the causal connection between the abuse and the

injury under similar circumstances. He does not dispute that he has experienced

anger and hatred toward the nuns, priests, and the church since at least his junior

year of high school, but insists that Dr. King’s affidavit opining that his anger and

hatred were merely coping mechanisms, a means to escape and avoid negative

feelings and painful memories, shows that there is sufficient evidence in dispute to

preclude summary judgment.



_______________________________
( . . . continued)
          judgment is proper on statute of limitations issues only when application of
          the law is in question, and not when there are remaining issues of material
          fact.”’” Peterson v. Hohm, 2000 S.D. 27, ¶ 7, 607 N.W.2d 8, 10-11 (quoting
          Wissink v. Van De Stroet, 1999 S.D. 92, ¶ 9, 598 N.W.2d 213, 215) (additional
          citation omitted). When issues of material fact remain, the statute of
          limitations question is for the jury. Id. ¶ 8. Nonetheless, although,
          “[g]enerally, a statute of limitations question is left for the jury,” determining
          “‘what constitutes accrual of a cause of action’ is a question of law and
          reviewed de novo.” One Star v. Sisters of St. Francis, 2008 S.D. 55, ¶ 12, 752
          N.W.2d 668, 675 (quoting Hohm, 2000 S.D. 27, ¶¶ 7-8, 607 N.W.2d at 10-11
          (citations omitted)).


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[¶11.]       Because Iron Wing’s alleged sexual abuse occurred more than forty

years ago, he had to have brought his civil action within “three years of the time

[he] discovered or reasonably should have discovered that the injury or condition

was caused by the act[.]” See SDCL 26-10-25. The evidence indisputably shows

that Iron Wing never forgot the abuse and was aware that he was angry and felt

hatred toward the church, the nuns, and the priests, as well as their orders since

his junior year of high school. And despite the fact that his stepmother disbelieved

him when he told her and his father of the abuse early in his junior year of high

school, he nonetheless left the high school as a junior and went to the Flandreau

Indian School. As he explained, the sexual abuse at the hands of Fr. Francis “was

the main reason I left.”

[¶12.]       This case is controlled by our decisions in One Star, 2008 S.D. 55, 752

N.W.2d 668 and Rodriguez v. Miles, 2011 S.D. 29, 799 N.W.2d 722. As in

Rodriguez, Iron Wing relies on expert opinion that his anger and hatred were mere

coping mechanisms, and that he did not make the connection between his anger and

hatred and the sexual abuse. Yet, as we wrote in Rodriguez, “even assuming that

[he] did not discover the connection between the sexual abuse and his injuries or

condition until 2005, his action may still be barred if he was put on inquiry notice

more than three years before he commenced his action.” 2011 S.D. 29, ¶ 9, 799

N.W.2d at 725-26. Thus the question here, as it was in Rodriguez, is “whether [Iron

Wing] became aware of facts that would have prompted ‘a reasonably prudent

person to seek information about the problem and its cause’ more than three years

before commencing his action, or, stated otherwise, whether he had inquiry notice.”


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Id. When asked what problems the sexual abuse caused over the course of his life,

Iron Wing responded: “The main problem it [referring to Sr. Poitra] caused . . . was

a lot of hatred for the nuns and that whole order, not just her. A lot of hatred for

the church. That’s basically the main problem it caused. I don’t trust them.” He

gave a similar answer with respect to Fr. Francis’s abuse. And he explained that he

began to experience this hatred in “[his] 11th grade year, 1965.”

[¶13.]       An action “accrues and the plaintiff is put on inquiry notice when facts

come to light that would prompt a reasonably prudent person to seek out

information regarding his or her injury or condition and its cause.” One Star, 2008

S.D. 55, ¶ 18, 752 N.W.2d at 677. “Inquiry notice is determined by an objective

standard.” Rodriguez, 2011 S.D. 29, ¶ 11, 799 N.W.2d at 726. Although Iron Wing

perhaps subjectively could not “connect the full extent of his injuries to the sexual

abuse, he was aware of enough facts to put him on inquiry notice.” See id. He knew

he had been abused by two members of a religious order beginning when he was age

ten and resuming at age thirteen, because of this abuse he was angry and harbored

hatred against the church and its priests and nuns from the time he was in the

eleventh grade, he left the school because of the abuse, and he never forgot the

abuse. These circumstances were sufficient to “‘prompt[] a reasonably prudent

person to seek out information regarding his injury or condition and its cause.’” See

Zephier, 2008 S.D. 56, ¶ 14, 752 N.W.2d at 665 (citation omitted); SDCL 26-10-25.

Consequently, Iron Wing was on inquiry notice more than three years before he

brought suit in 2008.

[¶14.]       Affirmed.


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[¶15.]      GILBERTSON, Chief Justice, and ZINTER, SEVERSON, and

WILBUR, Justices, concur.




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