                SUPREME COURT OF MISSOURI
                                        en banc

STATE EX REL. HEART OF AMERICA                          )
COUNCIL, BOY SCOUTS OF AMERICA                          )
and                                                     )
BOY SCOUTS OF AMERICA,                                  )
                                                        )
         Relators,                                      )
                                                        )
vs.                                                     )      SC94942
                                                        )
THE HONORABLE CHARLES H. McKENZIE,                      )
                                                        )
         Respondent.                                    )


                     ORIGINAL PROCEEDING IN PROHIBITION

                              Opinion issued March 15, 2016

         The Heart of America Council of the Boy Scouts of America and the national Boy

Scouts of America organization (collectively, “the Boy Scouts”) seek a writ of

prohibition preventing the trial court from taking any action other than to grant their

motions for summary judgment on plaintiff John Doe’s claims for statutory childhood

sexual abuse in violation of section 537.046, 1 battery, and negligence. The Boy Scouts
                                               0F




argue the trial court erred in overruling their motions because the applicable statutes of

limitations for all the claims have expired. Further, the Boy Scouts contend that Mr. Doe




1
    Statutory citations are to RSMo Supp. 2013 except where otherwise indicated.
cannot bring a childhood sexual abuse claim under section 537.046 against the Boy

Scouts because it only authorizes actions against the alleged perpetrator of the abuse, who

in this case is Scoutmaster Bradshaw.

       This Court issued its preliminary writ. It now makes that writ permanent. The

statutes of limitations for the battery and negligence claims against the Boy Scouts have

expired, and the longer statute of limitations set out in section 537.046 applies only to

statutory claims of childhood sexual abuse brought under that section; it does not extend

the statute of limitations for the additional common law claims asserted for battery and

negligence.

       This Court also holds that, by its terms, section 537.046 creates a cause of action

only against the person who allegedly committed the abuse. It does not provide a cause

of action for childhood sexual abuse against non-perpetrators such as the Boy Scouts

organization. This Court cannot expand the scope of the statute beyond its plain and

ordinary meaning. Mr. Doe, therefore, cannot sue the Boy Scouts for childhood sexual

abuse under section 537.046.

I.     FACTUAL AND PROCEDURAL HISTORY

       John Doe was born on May 1, 1980. He alleges that he was sexually abused by

his scoutmaster, Mr. Bradshaw, from 1992 to 1997, while he was between 12 and

approximately 18 years old and was a member of Mr. Bradshaw’s Boy Scout troop in

Kansas City, Missouri. Mr. Doe does not claim that he repressed his memory of the

abuse; to the contrary, he says that he always has been aware of the abuse. Mr. Doe’s

parents learned of the alleged abuse in 1997 and reported it to the local police.
       In mid- to late 1999 and early 2000, Mr. Doe began collecting evidence related to

the alleged sexual abuse. In 2001, after he turned 21 years old, Mr. Doe met with an

attorney but decided not to proceed with a lawsuit. Mr. Doe claims he and his family did

not pursue criminal or civil remedies because the Boy Scouts organization said it would

“take care of” the situation without revealing that this was just one of many alleged

incidents involving Boy Scout leaders. Mr. Doe does not allege any settlement was

reached, nor does he allege that the Boy Scouts hindered Mr. Doe from contacting an

attorney or filing suit.

       Several years later, sometime between 2007 and 2011, Mr. Doe met again with the

same attorney about this same matter, but that attorney declined to represent him.

Another attorney also declined to represent Mr. Doe and informed him that the applicable

statutes of limitations had run. Mr. Doe contacted another attorney who, on April 4, 2011

– a few weeks before Mr. Doe’s 31st birthday – filed the underlying suit against

Mr. Bradshaw; the Heart of America Council, of which Mr. Bradshaw’s Boy Scout troop

was a part; and the parent Boy Scouts organization, the Boy Scouts of America.

       The petition alleges three counts against the Boy Scouts.

       • In Count I, Mr. Doe claims the Boy Scouts are vicariously and directly liable

           under section 537.046 for the childhood sexual abuse allegedly committed by

           Mr. Bradshaw against Mr. Doe because Mr. Bradshaw was acting within the

           course and scope of his duties when he abused Mr. Doe and because the Boy

           Scouts “(a) aided and abetted Bradshaw; (b) negligently failed to properly vet

           Bradshaw before allowing him to be a Scoutmaster or an authorized adult
                                            3
          volunteer; and/or (c) negligently failed to properly supervise and monitor

          Bradshaw’s interactions with plaintiff.”

       • In Count II, Mr. Doe claims the Boy Scouts are vicariously liable for the

          common law battery allegedly committed by Mr. Bradshaw against Mr. Doe.

       • In Count III, Mr. Doe claims the Boy Scouts are directly liable for negligence

          because they had a “duty to protect plaintiff and provide him with a safe

          Scouting experience” and they breached that duty by the same conduct alleged

          in support of his statutory claim for childhood sexual abuse.

       The Boy Scouts answered that the childhood sexual abuse statute does not provide

a basis for liability for anyone other than the actual perpetrator of the abuse and asserted

that they were neither directly nor vicariously liable for Mr. Bradshaw’s acts, which were

not within the scope and course of employment, and that in any event all of Mr. Doe’s

claims were barred by the various applicable statutes of limitations. They sought

summary judgment on these grounds. Mr. Doe argued that his claims were timely filed

under language added to section 537.046 in 2004 stating that the limitations period for a

childhood sexual abuse claim does not run until 10 years after the victim of childhood

sexual abuse turns 21. He alleged that this lengthening of the applicable limitations

period applies to all claims pertaining to the abuse, including common law claims for

battery and negligence, and further claims that it applies to both perpetrators and non-

perpetrators who are alleged to be liable based on vicarious liability, aiding and abetting,

or negligent hiring or supervision.

       The trial court denied the Boy Scouts’ motions for summary judgment. The Boy
                                             4
Scouts filed a petition for writ of prohibition asking this Court to enjoin the trial court

from proceeding in the case other than to sustain the Boy Scouts’ motions for summary

judgment. 2 This Court issued a preliminary writ of prohibition on June 30, 2015.
          1F




II.    STANDARD OF REVIEW

       This Court “may issue and determine original remedial writs.” Mo. Const. art. V,

§ 4.1. The standard of review of the grant or denial of summary judgment is de novo.

ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo.

banc 1993). This Court seldom grants a writ to compel the grant of a motion for

summary judgment, but a “writ of prohibition is appropriate in the context of summary

judgment to prevent unnecessary, inconvenient and expensive litigation.” State ex rel.

City of Blue Springs v. Nixon, 250 S.W.3d 365, 369 (Mo. banc 2008) (internal quotations

omitted). In particular, issuance of a writ “can be an appropriate remedy where a trial

court erroneously permits a claim that is barred by the statute of limitations to proceed to

trial.” State ex rel. Bloomquist v. Schneider, 244 S.W.3d 139, 141 (Mo. banc 2008). 32F




2
  Mr. Bradshaw did not move for summary judgment, and the claims against him are not
part of this writ proceeding.
3
  Mr. Doe suggests that because this Court does not know on which ground the trial court
granted summary judgment, its decision would be an advisory opinion. This is incorrect.
An opinion is advisory if there is no justiciable controversy, such as if the question
affects the rights of persons who are not parties in the case, the issue is not essential to
the determination of the case, or the decision is based on hypothetical facts. See, e.g.,
Harris v. Consol. Sch. Dist. No. 8 C, Dunklin County, 328 S.W.2d 646, 653-54 (Mo. banc
1959); State ex rel. State Bd. Of Mediation v. Pigg, 244 S.W.2d 75, 79 (Mo. banc 1951).
Here, the Court’s opinion is not merely advisory. Whichever ground caused the trial
court to deny summary judgment, it erred in doing so because the Boy Scouts were
entitled to summary judgment based on the statutes of limitations and because the child
abuse statute does not provide a cause of action against non-perpetrators.
                                             5
III.   BATTERY AND NEGLIGENCE CLAIMS ARE TIME-BARRED

    A. Battery and Negligence Statutes of Limitations are Expired

       The Boy Scouts argue that they are entitled to summary judgment on the battery

and negligence counts because the statutes of limitations for battery and negligence

expired many years ago. 4 This Court agrees.
                         3F




       The statute of limitations for battery is two years. § 516.140. The statute of

limitations for negligence is five years. § 516.120. Each limitations period begins to run

when the damages are sustained and capable of ascertainment. § 516.100; State ex rel.

Marianist Province of the United States v. Ross, 258 S.W.3d 809, 811 (Mo. banc 2008).

Except in cases of repressed memory, damages are usually ascertainable at the time of the

tortious conduct, which normally is sufficient to “place a reasonably prudent person on

notice of a potentially actionable injury.”     Marianist Province, 258 S.W.3d at 811

(internal citation omitted).   Where, as here, the plaintiff was a minor at the time of the

tortious conduct, however, the statute is tolled until the plaintiff reaches age 21.




4
  While Mr. Doe argues that the Boy Scouts did not timely raise their affirmative
defenses because they did not timely file their answer to the petition, they acknowledge
that, as authorized by Rule 44.01, the trial court granted the Boy Scouts leave to file their
answer out of time and overruled Mr. Doe’s motion to strike the Boy Scouts’ affirmative
defenses related to the statutes of limitations. Those defenses, therefore, were not waived.
Mr. Doe does not raise a claim on appeal that these trial court rulings were an abuse of
discretion. Further, while Mr. Doe argues that insufficient facts were pleaded in support
of the statutes of limitations defenses, the undisputed timing of the events in this case are
what compel summary judgment. Finally, the Boy Scouts’ contention that the childhood
sexual abuse act does not apply to non-perpetrators is not an affirmative defense but a
negation of Mr. Doe’s cause of action against them.
                                               6
§ 516.170. 5
          4F




       In this case, Mr. Doe alleges the tortious conduct occurred from 1992 to 1997,

when he was 12 to approximately 18 years of age. Mr. Doe turned 21 on May 1, 2001.

Under section 516.170 as in effect during this period, he had two years from the time he

reached age 21 in which to bring suit for battery and five years to bring any claim for

negligence. While Mr. Doe consulted attorneys about filing suit in 2001 and 2009, he

chose not to file suit until 2011, a few weeks shy of his 31st birthday. This was long after

the statute of limitations for battery expired in 2003 and for negligence expired in 2006 if

those claims are governed by the two- and five-year statutory periods set out in sections

516.140 and 516.120.

       Mr. Doe admits that he failed to file suit within the statutory periods for the battery

and negligence claims under sections 516.120 and 516.140 but argues that the statutes of

limitations on his claims for negligence and battery should be tolled under section

516.280. That section states: “If any person, by absconding or concealing himself, or by

any other improper act, prevent the commencement of an action, such action may be

commenced within the time herein limited, after the commencement of such action shall

have ceased to be so prevented.”

       “The essence of a fraudulent concealment action is that a defendant, by his or her

post-negligence conduct, affirmatively intends to conceal from plaintiff the fact that the

plaintiff has a claim against the defendant.” Batek v. Curators of Univ. of Missouri, 920


5
 The statute of limitations may further be tolled if the plaintiff claims a repressed
memory, but Mr. Doe admits he did not have a repressed memory.
                                         7
S.W.2d 895, 900 (Mo. banc 1996). Improper acts are “uniformly held to mean some act

on the part of the defendant that would hinder or delay the commencement of a suit, the

service of process or some necessary step in relation thereto.” Wheeler v. Missouri Pac.

R. Co., 42 S.W.2d 579, 583 (Mo. 1931). “Fraudulent concealment is inapplicable if a

plaintiff knows or should have known he had a cause of action.” M & D Enterprises, Inc.

v. Wolff, 923 S.W.2d 389, 400 (Mo. App. 1996).

       In the instant case, Mr. Doe has failed to allege any conduct by the Boy Scouts

that hindered or delayed his commencement of this action until after the expiration of the

statutes of limitations for battery or negligence. Batek, 920 S.W.2d at 900. He admits

that he always remembered the abuse. He does say that he decided not to pursue criminal

or civil remedies because his family was told by the Boy Scouts that they would “take

care of” the situation and that they failed to reveal to him that there were other cases of

sexual abuse by Boy Scout leaders. Whether or not these facts would be relevant in a

timely filed suit, they do not affect the limitations period on Mr. Doe’s claims.       He

concedes he always knew of his own claims and does not allege that whether others were

abused constituted a legal hindrance to his filing suit. Further, he had counsel to advise

him both at the time he decided not to pursue his claims and when he again consulted

counsel at an unspecified time between 2007 and 2011 but again chose not to sue.

Indeed, he chose not to act on his claims for almost another decade after he turned 21.

No conduct by the Boy Scouts impaired his ability to do so. Batek, 920 S.W.2d at

900. The statutes of limitations were not tolled on Mr. Doe’s claims for negligence and

battery against the Boy Scouts under section 516.280.

                                            8
   B. The Childhood Sexual Abuse Statute does not Govern Claims Sounding in
      Battery and Negligence.

       Mr. Doe alternatively argues that the statute of limitations for childhood sexual

abuse under section 537.046 should apply to his battery and negligence claims against the

Boy Scouts because he alleges that the same conduct that constituted the abuse also

constituted a battery and resulted from the Boy Scouts’ negligence. While the same

conduct may underlie Mr. Doe’s negligence and battery claims as underlies his childhood

sexual abuse claims, he is asserting that those facts support three different torts. The

legislature has set out different statutes of limitations for the two common law claims of

battery and negligence than for the statutory claim of childhood sexual abuse. The statute

of limitations for childhood sexual abuse is set out in section 537.046, which states:

       1. As used in this section, the following terms mean:
       (1) “Childhood sexual abuse”, any act committed by the defendant against
       the plaintiff which act occurred when the plaintiff was under the age of
       eighteen years and which act would have been a violation of section
       566.030, 566.040, 566.050, 566.060, 566.070, 566.080, 566.090, 566.100,
       566.110, or 566.120, or section 568.020;
       (2) “Injury” or “illness”, either a physical injury or illness or a
       psychological injury or illness. A psychological injury or illness need not
       be accompanied by physical injury or illness.
       2. Any action to recover damages from injury or illness caused by
       childhood sexual abuse in an action brought pursuant to this section shall
       be commenced within ten years of the plaintiff attaining the age of twenty-
       one or within three years of the date the plaintiff discovers, or reasonably
       should have discovered, that the injury or illness was caused by childhood
       sexual abuse, whichever later occurs.
       3. This section shall apply to any action commenced on or after August 28,
       2004, including any action which would have been barred by the
       application of the statute of limitation applicable prior to that date.

§ 537.046 (italics added; bold in original).

       While section 537.046 does not expressly state it is creating a new cause of action

                                               9
for childhood sexual abuse, that is its effect because it provides a definition of “childhood

sexual abuse” and then states that suit for childhood sexual abuse in “an action brought

pursuant to this section” shall be brought in a set amount of time. It thereby provides a

specific statutory basis for recovery for victims of childhood sexual abuse.

       Because the statutory period set out in section 537.046 is longer than the statutes

of limitations periods for battery or negligence, it would permit a plaintiff who falls

within its terms to sue for childhood sexual abuse even after that person’s claims for

negligence or battery are time-barred. Section 537.046 does not, however, purport to

extend the statutory period for bringing claims for battery or negligence. To the contrary,

subsection 1(1) defines what acts constitute “childhood sexual abuse,” and those acts do

not include battery or negligence. The defined acts are limited to acts committed against

a person under the age of 18 years that would have been a violation of the criminal sex

offense statutes identified in the statute. 6 Battery and negligence are not listed.
                                          5F




       Equally important, section 537.046.2 states that the special statute of limitations

set out in that statute applies only to “an action brought pursuant to this section” – that is,

suit under section 537.046. A suit for battery or for negligence is a suit brought under the

common law, not under section 537.046. Therefore, the statute of limitation set forth in

section 537.046 does not extend the statute of limitations for plaintiff’s negligence and


6
  Specifically, the statute lists §§ 566.030 (first-degree rape); 566.040 (second-degree
rape) (transferred to 566.031, RSMo Supp. 2013); 566.060 (first-degree sodomy);
566.070 (second-degree sodomy) (transferred to 566.061, RSMo Supp. 2013); (second-
degree sexual abuse) (transferred to 566.101, RSMo Supp. 2013); 566.100 (first-degree
sexual abuse); 568.200 (incest). Sections 566.050, .080, .110 and .120 were repealed
effective January 1, 1995. 1994 Mo. Laws 1135–37.
                                            10
battery claims. Those claims are time-barred under the applicable statutes of limitations

for those torts, set out in sections 516.120 and 516.140, respectively.       This Court,

therefore, turns to Mr. Doe’s claim against the Boy Scouts under section 537.046 itself.

IV.    CHILDHOOD SEXUAL ABUSE STATUTE DOES NOT PROVIDE A CAUSE
       OF ACTION AGAINST NON-PERPETRATORS

       Mr. Doe asserts that a statutory childhood sexual abuse claim can be brought

against non-perpetrators as well as perpetrators because the legislature defined the cause

of action under section 537.046 as “any action to recover damages from injury or illness

caused by childhood sexual abuse …” and did not include language excluding non-

perpetrators.   This Court disagrees. The statute must be read as a whole.         Section

537.046.1 defines “childhood sexual abuse” as “any act committed by the defendant

against the plaintiff ….” § 537.046.1 (emphasis added). By its terms, section 537.046

requires the defendant to have committed the act to be culpable under that statute. A

corporation or association cannot itself commit the criminal acts that constitute childhood

sexual abuse. It must act through its agents. Section 537.046 does not contain any basis

to impose liability for acts committed by others.

       Mr. Doe asks this Court, nonetheless, to read into the statute the right to sue non-

perpetrators. The Court rejects this argument. “Courts do not have the authority to read

into a statute a legislative intent that is contrary to its plain and ordinary meaning. The

legislature may wish to change the statute …. But this Court, under the guise of

discerning legislative intent, cannot rewrite the statute.” State v. Rowe, 63 S.W.3d 647,

650 (Mo. banc 2002), citing, Kearney Special Rd. Dist. v. County of Clay, 863 S.W.2d


                                            11
841, 842 (Mo. banc 1993). “When the words are clear, there is nothing to construe

beyond applying the plain meaning of the law.” Rowe, 63 S.W.3d at 649

       For this reason, the Eighth Circuit Court of Appeals recently rejected a similar

claim against a non-perpetrator principal for childhood sexual abuse by a teacher, stating

“[a] nonperpetrator defendant could not cause injury or illness by ‘childhood sexual

abuse,’ as that term is defined, because such a defendant necessarily has not committed

one of the enumerated acts.” Walker v. Barrett, 650 F.3d 1198, 1209 (8th Cir. 2011)

(emphasis in original). 7 This Court agrees. Mr. Doe’s claims against the Boy Scouts
                         6F




under section 537.046 fail to state a claim because the statute creates a cause of action

against the perpetrators of sexual abuse only. 87F




7
  To the extent that Mr. Doe argues vicarious liability, again, the statute permits suit only
against the defendant, not others. To the extent that he asserts direct liability for failure
to supervise, again, such negligence, if proved, would not prove that the Boy Scouts
themselves perpetrated the sexual abuse. To the extent that Mr. Doe asserted that the
Boy Scouts aided and abetted in the conduct by their negligent hiring and supervision,
they mix a criminal concept with civil liability. Missouri law does impose equal criminal
liability on “all persons who act in concert” in the commission of a crime. § 562.041.1;
State v. Barnum, 14 S.W.3d 587, 591 (Mo. banc 2000). But section 537.046 does not
incorporate section 562.041.1 into the definition of “childhood sexual abuse.”
8
  Mr. Doe also claims that while his claim of childhood sexual abuse may have been
time-barred under the version of section 537.046 in effect prior to 2004, it was revived by
the version of section 537.046 adopted by the legislature in 2004, one year after the old
statute of limitations had expired, because subsection 3 of the revised statute said that its
extended statute of limitations “shall apply to any action commenced on or after August
28, 2004, including any action which would have been barred by the application of the
statute of limitation applicable prior to that date.” The Boy Scouts counter that in Doe v.
Roman Catholic Diocese of Jefferson City, 862 S.W.2d 338, 341 (Mo. banc 1993)
(internal citations omitted), this Court held that pursuant to Missouri Constitution, article
I, section 13’s bar on laws “retroactive in operation” “once the original statute of
limitation expires and bars the plaintiff’s action, the defendant has acquired a vested right
to be free from suit, a right that is substantive in nature, and therefore article I, section 13,
                                               12
V.     CONCLUSION

       For the reasons set out above, this Court holds that the battery and negligence

claims against the Boy Scouts are time-barred and that there is no cause of action against

non-perpetrator defendants like the Boy Scouts under section 537.046. The preliminary

writ of prohibition is made permanent.




                                                 _________________________________
                                                   LAURA DENVIR STITH, JUDGE


All concur.




prohibits the legislative revival of the cause of action.” Id. Because this Court has found
that section 537.046 does not apply to non-perpetrators, it does not reach this important
issue, for a court “does not decide constitutional questions where not necessary to a
decision of the case.” City of St. Joseph v. Christgen, 513 S.W.2d 458, 459 (Mo. 1974).
                                              13
