Episcopal Priest John A. Rogers

No. CV 04-0833129S Connecticut Superior Court Judicial District of Hartford at Hartford

Truex v. Rogers 2006 Ct. Sup. 8618 (Conn. Super. Ct. 2006) Decided May 10, 2006

No. CV 04-0833129S May 10, 2006

MEMORANDUM OF DECISION ON DEFENDANT, JOHN ROGERS' MOTION FOR SUMMARY JUDGMENT CHRISTINE E. KELLER, JUDGE. The plaintiff, Brendan Truex, has brought an action against three defendants, John Rogers, (Rogers) an Episcopal priest, Trinity Episcopal Parish of Wethersfield and The Missionary Society of the Diocese Connecticut, alleging that Rogers, while acting as the agent, servant or employee of the other defendants, inappropriately touched the plaintiff without his consent. The amended complaint, dated May 24, 2004, contains six counts against defendant Rogers. Counts 1, 2, 3, 4, 5 and 8 allege, respectively, intentional assault and battery, negligent assault and battery, intentional infliction of emotional distress, negligent infliction of emotional distress and negligence against Rogers. The plaintiff, who was born in 1975, alleges that the inappropriate conduct of a sexual nature on the part of Rogers occurred between 1990 and 1994, but he cannot recall the exact date. Rogers has moved for summary judgment on the basis that all six of the causes of action alleged against him are barred by the statutes of limitations set forth in General Statutes §§ 52-577d and 52-584. The defendant has asserted the bar of these statutes of limitations in his revised answer and special defense. The

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defendant claims that the plaintiff cannot establish he was a minor when the conduct occurred and therefore cannot avail himself of the extended statute of limitations provided to minor victims of sexual abuse, sexual exploitation or sexual assault under § 52-577d. The defendant also asserts that even if there is a genuine issue of material fact that the plaintiff was a minor when the alleged act occurred, the misconduct alleged does not constitute sexual abuse, sexual exploitation or sexual assault within the meaning of the extended statute of limitations.

I Standard of Review CT Page 8619 Practice Book § 17-49 provides that summary judgment must be granted if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. "The party seeking summary judgment has the burden of showing the absence of any genuine issue as to all material facts, which, under the applicable principles of substantive law, entitle him to judgment as a matter of law." (Citations omitted.) Suaraez v.

Dickmont Plastics Corp., 229 Conn. 99, 105, 639 A.2d 507 (1994). "To satisfy his burden, the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact." Plouffe v. New York, New Haven and Hartford Railroad Co., 160 Conn. 482, 488, 280 A.2d 359 (1971). A party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material

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fact, together with the evidence disclosing the existence of such an issue. Practice Book §§ 1745, 17-46; Burns v. Hartford Hospital, 192 Conn.

451, 455, 472 A.2d 1257 (1984). In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. Connell v. Colwell, 214 Conn. 242, 246-47, 571 A.2d 116 (1990). The test is whether a party would be entitled to a directed verdict on the same facts. New Milford Savings Bank v. Roina, 38 Conn.App. 240, 243-44, 659 A.2d 1226 (1995). The court finds that genuine issues of material fact exist as to whether the plaintiff was a minor at the time of the alleged misconduct and whether the plaintiff suffered personal injuries as the result of sexual abuse, sexual exploitation or sexual assault by Rogers.

Therefore, Rogers' motion for summary judgment is denied.

II Discussion General Statutes § 52-577d states: [N]o action to recover damages for personal injury to a minor, including emotional distress, caused by sexual abuse, sexual exploitation or sexual assault may be brought by such person later than thirty years from the date such person attains the age of majority.

The plaintiff was born in 1975. The alleged misconduct by Rogers is said to have occurred between 1990 and 1994, while the plaintiff was a high school student. There is no dispute that for at least a portion of this time period, the plaintiff was not a minor.

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The causes of action alleged in the six counts against Rogers all sound in negligent or intentional tort actions normally subject to two or three-year statutes of limitations. General Statutes § 52-584 governs the statute of limitations for the negligent assault and battery, negligent infliction of emotional distress and negligence claims in counts 2, 4 and 5, which is two years. General Statutes § 52-577 imposes a three-year statute of

limitations on actions for intentional assault and battery, intentional infliction of emotional distress and breach of fiduciary duty, which are alleged in counts 1, 3 and 8. However, several Connecticut courts have held that in actions for damages to a minor caused by sexual abuse, the specific statute of limitations contained in General Statutes § 52577d governs over the more general provisions in §§ 52-584 and 52-577. In See v. Bridgeport Roman Catholic Diocesan Corp., Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 93-0300948 (September 13, 1993, Freed, J.) ( 10 Conn. L. Rptr. 51), the plaintiffs sought damages for personal injuries caused by sexual abuse to them when they were minors. The defendants filed a motion for summary judgment claiming that the plaintiffs' negligence counts were time-barred by the statute of limitations contained in §§ 52-584 and 52-577. The court denied the summary judgment and held that the more specific statute of limitations contained in § 52-577d controlled if a minor is seeking damages as a result of sexual abuse, sexual exploitation or sexual assault.

In denying the defendants' motion for summary judgment in See, the court stated that, "It is a basic rule of statutory construction that `absent manifest intent to repeal an earlier statute, when general and specific statutes conflict they should be harmoniously construed so the more specific statute controls.' McKinley v. Musshorn, 185 Conn. 616, 624, 441 A.2d 600 (1981)." Id. In this case, the plaintiff alleges that Rogers inappropriately touched him without his consent by reaching beneath his clothing to massage plaintiff's chest with his hands, touching his nipples and then moving his hands downward 8621 inside the waist of *8621 plaintiff's pants. In an affidavit dated January 26, 2006, appended to plaintiff's memorandum in support of his objection to the motion for summary judgment, the plaintiff indicates that he can no longer say with precision how old he was when this incident took place, but he has stated to health care providers and to

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authorities at the defendant Diocese who investigated his claim that he was a minor, 16 or 17, when the incident took place. These statements are reflected in treatment and Diocese records which also are attached to the plaintiff's memorandum opposing summary judgment. Thus, there is admissible evidence that could establish, if accepted as credible by the trier of fact, that the plaintiff was a minor when the incident occurred.

If such is proven to be the case, the plaintiff's action, filed in 2004, is not subject to a statute of limitations defense because it was brought well within the thirty-year time limit established under § 52-577d.

Here, the plaintiff alleges negligent and intentional causes of action and seeks damages for personal injury, including emotional distress, caused by alleged sexual assault, sexual exploitation or sexual abuse. The plaintiff was twenty-nine years old when this action was brought; accordingly, he reached the age of majority eleven years prior to commencement of the action. See General Statutes § 1-1d ("`age of majority' shall be deemed to be eighteen years"). Accordingly, if the plaintiff was a minor when the alleged incident occurred, he has brought this action within the time limit set forth in General Statutes § 52-577d. See Doe v. Burns, Superior Court, judicial district of Middlesex at Middletown, Docket No. CV-03-010021, (July 19, 2005, Aurigemma, J.) ( 39 Conn. L. Rptr. 815).

The defendant also argues that the conduct alleged does not meet the definition of the "sexual abuse, sexual exploitation or sexual assault" required under the § 52-577d extension since there is no allegation that there was sexual contact to an intimate part of the plaintiff's body. The defendant argues that only the definitions of "sexual contact" and "intimate parts" in §§ 53a-65(3) and 53a-65(8) of the Connecticut Penal Code can be used in ascertaining whether or not sexual abuse, sexual exploitation or sexual assault occurred in a civil action. However, the defendant cites no authority that restricts the definitions of sexual abuse, sexual exploitation or even sexual assault contemplated

by § 52-577d to the definitions in the penal code.1 Tort law seems to take a considerably broader view of the definition of an assault and battery 8622 with a sexual *8622 component, which may be intentional or negligent. A battery is defined as a "harmful or offensive contact with a person, resulting from an act intended to cause the plaintiff to suffer such a contact, or apprehension that such a contact is imminent." W. Prosser W. Keeton, Torts, (5th Ed. 1984) § 9, p. 39; Fernandez v. Standard Fire Ins. Co., 44 Conn.App. 220, 224, fn.4, 688 A.2d 349 (1997).

See also Barrese v. DeFillippo, 45 Conn.App. 102, 109, fn.3, 694 A.2d 797 (1997).

1 § 53a-65(3) defines "sexual contact" as

"any contact with the intimate parts of a person . . . for the purpose of sexual gratification of the actor or for the purpose of degrading or humiliating such person . . ." General Statutes § 53a-65(8) defines "intimate parts" as "the genital area, groin, anus, inner thighs, buttocks or breasts."

Even if the definitions of sexual abuse, sexual exploitation or sexual assault contemplated in § 52-577d are limited by the related definitions in our penal code, the plaintiff's claims, if proven, would be sufficient to meet the definitions of "sexual contact" and "intimate parts" advocated by the defendant. The plaintiff, in an affidavit dated June 21, 2004 and in testimony at a prejudgment remedy hearing on September 27, 2004, both of which are attached to his objection, stated that the defendant slid his hands up under a layer of the plaintiff's clothing, rubbed plaintiff's upper chest area around his nipples and then ran his hands down plaintiff's chest and inside plaintiff's waistband. Given these facts, there is a genuine issue of material fact, even adopting the defendant's limited definition, as to whether the defendant, when he allegedly methodically rubbed the plaintiff's nipples for some time engaged in sexual contact with the intimate parts of the plaintiff for the purpose of sexual gratification, degradation or humiliation. There is no distinction

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in § 53a-65(8) limiting any of the enumerated bodily areas to females or males. If, as the defendant argues, his purpose in engaging in the misconduct alleged must be proven, "[t]he rule is that the [trier of fact's] function is to draw whatever inferences from evidence or facts established by the evidence it deems to be reasonable and logical." (Internal citations omitted; internal quotation marks omitted.) In re Mark A., 59 Conn.App. 538, 541, 757 A.2d 636 (2000).

Conclusion For the foregoing reasons, the motion of the defendant Rogers for summary judgment on Counts 1, 2, 3, 4, 5 and 8 is denied.

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