Summary of Current Law: Indiana's general
statute of limitations requires that any actions for injuries to the
person must be filed within 2 years of the time when the cause of action
accrues. Illinois Code 34-11-2-4
If a victim is under a "legal disability," the claim must be brought
within 2 years of removal of the disability. Illinois
Code 34-11-6-1
Indiana Code § 34-1-2-5 bars suits based on injuries that occurred
in childhood unless brought within two years of the child reaching age
eighteen.
In Fager v. Hundt, 610 N.E.2d 246 (Ind. 1993), the
Indiana Supreme Court applied the doctrine of fraudulent concealment to
allow the claim of a victim (against her parents) whose memory had been repressed memory claim.
The court rejected a discovery-type analysis (that the statute of
limitations should start to run when the victim discovers the abuse or
realizes that she has a cause of action.) The Supreme Court
clarified the Fager ruling in
Doe v. Shults-Lewis Child & Family Services, 718 N.E.2d 738 (Ind.
1999) and articulated the criteria under which a victim could
could extend the statute of limitations under a
fraudulent concealment theory:
[W]hen an adult plaintiff asserts a claim for
tortious conduct committed against him or her as a child and brings
an action beyond the statute of limitations period against a
defendant who is not a parent, Fager and Indiana law, properly
construed, require plaintiff to: 1) show his or her parent(s) did
not know of the tortious conduct, or the parent(s) knew of the
tortious conduct and colluded to conceal the tortious conduct; 2)
prove the tortious act alleged; 3) show that the defendant, through
his own actions, breached a duty to inform or engaged in wrongful
conduct which prevented the plaintiff from discovering the cause of
action within the statutory period, see Fager, 610 N.E.2d at 251,
253; 4) provide expert opinion evidence which supports the validity
of the phenomenon of repressed memory and opines that plaintiff
actually repressed memory of the abuse, see id. at 252; and, 5) show
that the plaintiff exercised due diligence in commencing her action
after the equitable grounds ceased to operate (i.e., recovered her
memories), see id. at 251, and therefore brought the claim within a
reasonable time after recovering memories of the events.
Doe v. Shults-Lewis, 718 N.E.2d at 746. The Federal Court for the
Southern District of Indiana aptly summed up the state of the law in
Indiana:
[T]he court [in Fager] held that Indiana generally
does not allow a plaintiff to sue for acts suffered during childhood
and only later remembered, after the statute of limitations has run.
In Indiana, repressed memory is not a disability tolling a statute
of limitations. The Indiana court found that the "discovery
rule"---which in areas such as product liability and medical
malpractice law allows a plaintiff to sue years after the wrongful
act if the injury only recently has become manifest---is usually not
appropriate to wrongs against children because parents have an
obligation to discover the wrongs and seek redress. As noted, Fager
would impute knowledge of sexual abuse to [plaintiffs] parents and
have the cause of action accrue in the mid-1970's.
Ernstes v. Warner, 860 F. Supp. 1338 (S.D.Ind.1994)(fn2).
The case of
Tucker v. Roman Catholic Diocese of Lafayette 2005 N.E.2d Slip
(2005-710) illustrates how difficult it is bring a civil claim for
childhood sexual abuse in the absence of a special statute of
limitations
Resources:
Indiana Code
(IC)
Indiana Coalition Against Sexual
Assault
Revised
08/26/2007. Copyright Susan
K. Smith
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