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Cases and Commentary
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Summary: Claims
can be filed within 6 years of reaching the age of majority or 6 years of
the removal of a disability as defined by the statute. Colo. Rev. Stat. Ann. §13-80-103.7Subsequent court opinions have
established that the Colorado SOL is a "realization" statute; namely,
that the 6-year period does not begin to run until the victim comes to
a realization that not only was he or she abused, but that he or she
has become injured as a result of the abuse. A survivor is disabled
under the statute if he or she is unable to
acknowledge the abuse or the injury.
Damages are limited by statute to
medical and counseling costs for claims brought more than 15 years
after the age of majority.
Cases and
Commentary:
In Sailsbery v. Parks, 983 P.2d
137 (Colo. App. 1999) cert. denied (1999), the court applied a
realization-type definition to the discovery provision, holding that the
limitations period did not begin to run until the plaintiff knew of both her injury and its cause.
On August 24, 1999, the Colorado Supreme Court refused to hear the case
and let the lower Appellate Court ruling stand.
In
Sandoval
v. Archdiocese of Denver, 8 P.3d 598 (Colo. App. 2000) the appellate
court held that the special statute of limitations is not available to
extend the time in which claims can be filed against parties other than
the perpetrator, i.e. institutions who employ the perpetrator.
Special
6 year statute of limitations, and not the shorter health care
negligence limitation period, applied to a patient's claims for sexual
assault against a chiropractor.
Hurtado v. Brady (Colo. App. No. 05CA2556 Feb. 8, 2007)
(certiorari denied).
Text of Statute:
13-80-103.7 - General limitation of
actions - sexual assault or sexual offense against a child - six
years.
(1) Notwithstanding any other statute of
limitations specified in this article, or any other provision of law
that can be construed to reduce the statutory period set forth in this
section, any civil action based on a sexual assault or a sexual offense
against a child shall be commenced within six years after a disability
has been removed for a person under disability, as such term is defined
in subsection (3.5) of this section, or within six years after a cause
of action accrues, whichever occurs later, and not thereafter. Nothing
in this section shall be construed to extend the statutory period with
respect to vicarious liability.
(2) For the purpose of this section,
"sexual assault" means subjecting another person of any age to sexual
contact, as defined in section 18-3-401 (4), C.R.S.; sexual intrusion,
as defined in section 18-3-401 (5), C.R.S.; or sexual penetration, as
defined in section 18-3-401 (6), C.R.S.
(3) For the purposes of this section,
"sexual offense against a child" shall include all offenses listed in
section 18-3-411, C.R.S.
(3.5) (a) For the purpose of this
section, "person under disability" means any person who is a minor under
eighteen years of age, a mental incompetent, or a person under other
legal disability and who does not have a legal guardian. "Person under
disability" also includes a victim of a sexual assault when the victim
is in a special relationship with the perpetrator of the assault or is a
victim of a sexual offense against a child or is a victim who is
residing in an institutional facility, such as a nursing home, regional
center, or residential facility for the treatment and care of persons
with mental illness or for the care of persons with developmental
disabilities and where the victim is psychologically or emotionally
unable to acknowledge the assault or offense and the harm resulting
therefrom. For the purpose of this subsection (3.5), "special
relationship" means a relationship between the victim and the
perpetrator of the sexual assault which is a confidential, trust-based
relationship, such as attorney-client, doctor-patient,
psychotherapist-patient, minister-parishioner, teacher-student, or
familial relationship. It is the intent of the general assembly to leave
in place the six-year limitation for adults subjected to a sexual
assault except in the situations described in this paragraph (a) in
which the victim is in a special relationship with the perpetrator of
the assault. In the circumstances in which a victim is in a special
relationship with the perpetrator of the assault or is a victim of a
sexual offense against a child or a victim who is residing in an
institutional facility, such as a nursing home, regional center, or
residential facility for the treatment and care of persons with mental
illness or for the care of persons with developmental disabilities and
where the victim is psychologically or emotionally unable to acknowledge
the assault or offense and the harm resulting therefrom, the six-year
limitation shall be tolled until the disability is removed. For the
purpose of this section, where the plaintiff is a victim of a series of
sexual assaults or sexual offenses against a child, the plaintiff need
not establish which act of a series of acts caused the plaintiff's
injury, and the statute of limitations set forth in this section shall
commence with the last in the series of acts, subject to the provisions
of this section regarding disability. However, as elements of the cause
of action, a person under disability who is psychologically or
emotionally unable to acknowledge the assault or offense and the harm
resulting therefrom shall have the burden of proving that the assault or
offense occurred and that such person was actually psychologically or
emotionally unable to acknowledge the assault or offense and the harm
resulting therefrom.
(b) Notwithstanding the provisions of
section 13-90-107, the filing of a claim pursuant to this subsection
(3.5) is deemed to be a limited waiver of the doctor-patient privilege
or the psychologist-patient privilege to persons who are necessary to
resolve the claim, and a doctor or psychologist who provided medical
care and treatment or counseling and treatment to the plaintiff for
injuries upon which an action under this subsection (3.5) is based may
be examined as a witness. All medical records pertaining to any relevant
medical care and treatment or counseling and treatment of the plaintiff
are admissible into evidence in an action brought pursuant to this
subsection (3.5) and shall be available for inspection upon request by
the parties to the action.
(c) If the plaintiff brings a civil
action under this subsection (3.5) fifteen years or more after the
plaintiff attains the age of eighteen, the plaintiff may only recover
damages for medical and counseling treatment and expenses, plus costs
and attorney fees.
(d) It is the intent of the general
assembly in enacting this subsection (3.5) to extend the statute of
limitations as to civil actions based on offenses described in
subsection (1) of this section as amended on July 1, 1993, for which the
applicable statute of limitations in effect prior to July 1, 1993, has
not yet run on July 1, 1993.
(3.7) An action may not be brought
pursuant to subsection (3.5) of this section if the defendant is
deceased or is incapacitated to the extent that the defendant is
incapable of rendering a defense to the action.
(4) It is the intent of the general
assembly in enacting this section to extend the statute of limitations
as to civil actions based on offenses described in subsection (1) of
this section for which the applicable statute of limitations in effect
prior to July 1, 1990, has not yet run on July 1, 1990.
(5) The provisions of this section shall
not be construed to extend or suspend the statute of limitations or
statute of repose applicable to a claim alleging negligence in the
course of providing professional services in the practice of medicine.
This subsection (5) shall not be construed to preclude pursuing a civil
action pursuant to this section alleging a sexual offense based on a
legal theory other than negligence in the course of providing
professional services in the practice of medicine, unless the sexual
assault forms the basis for a claim of such negligence.
Added by Laws 1990, H.B.90-1085, § 1, eff. April
16, 1990. Amended by Laws 1993, H.B.93-1259, § 1, eff. July 1, 1993.
Resources:
Last
revision
09/04/2007. Copyright Susan K. Smith |
