This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ' 480A.08, subd. 3 (1994).

STATE OF MINNESOTA
IN COURT OF APPEALS
C4-95-2435

Grant Gibbons, et al.,
Respondents,

vs.

Robert Krowech,
Appellant.

Filed July 30, 1996
Reversed
Willis, Judge

Roseau County District Court
File No. C4-94-643

Neil A. McEwen, McEwen Law Office, Northern State Bank Building, P.O. Box 220, Thief River Falls, MN 56701 (for Appellant)

Donna K. Dixon, Law Offices of Cyril J. Mergens, Ltd., 116 North Main Street, P.O. Box F, Warroad, MN 56763 (for Respondents)

Considered and decided by Harten, Presiding Judge, Davies, Judge, and Willis, Judge.

U N P U B L I S H E D O P I N I O N

WILLIS, Judge

Appellant Robert G. Krowech challenges, inter alia, three orders of the trial court, denying his motions for summary judgment, directed verdict, and judgment notwithstanding the verdict. We reverse.

FACTS

Respondent Grant Gibbons was born on November 19, 1967. Respondent Shannon Gibbons was born on November 28, 1971. Respondents allege that from 1972 to 1978, and again in 1983, they were sexually abused by their neighbor, appellant Robert Krowech. During their adolescent years, respondents developed social and emotional problems: They abused illegal drugs and alcohol, suffered from episodes of depression, and experienced difficulty in sexual relationships. In 1990, respondents' older brother, Greg Gibbons, committed suicide. Appellants contend this event prompted them to confront their history of sexual abuse and to seek counseling.

On March 8, 1991, Grant, then age 24, and Shannon, then age 20, sued Krowech. Krowech moved for summary judgment, arguing that their claims were barred by the statute of limitations. The district court denied the motion.

A jury trial commenced on September 25, 1995. At trial, both respondents testified that when they were between the ages of 5 and 12, Krowech fondled them, performed oral sex on them, made them perform oral sex on each other, and penetrated them anally. Grant testified that he did not know the abuse caused him injury until "[a]fter my brother died [on January 9, 1990]." On cross-examination, however, Grant read the following portion of his deposition testimony into evidence:

Q And how old were you when you discussed [the abuse] briefly with [your friends]?

A Sixteen.

Q And at that point in [1983] did you know it was wrong?

A Oh, yes.

Q Did you know it was against the law?

A Yes, I did.

Shannon testified at trial that as a child, he thought Krowech was a "mean man," but that he did not know the abuse was wrong. Shannon testified that he first recognized he had been injured by the abuse after his brother's suicide. However, Shannon read the following portion of his deposition testimony into evidence:

Q Did you know [in 1983] that what Mr. Krowech was doing was wrong?

A Yes, we were just starting to figure it out being like I was more aware.

At the close of respondents' case, Krowech brought a motion for a directed verdict, arguing that respondents' claims were barred by the statute of limitations. The trial court denied the motion. On September 27, 1995, the jury returned a special verdict finding: (1) Krowech sexually abused respondents; (2) the sexual abuse was the direct cause of respondents' injuries; (3) Grant knew he was injured by the abuse in June 1988; and (4) Shannon knew he was injured by the abuse in December 1989. The jury awarded Grant Gibbons a total of $263,400 and Shannon Gibbons a total of $295,940. Each award included $225,000 in punitive damages.

Krowech brought a motion for judgment notwithstanding the verdict, arguing again that the claims were barred by the statute of limitations. The trial court denied the motion. Krowech challenges the denial of his motions for summary judgment, directed verdict, and judgment notwithstanding the verdict.

D E C I S I O N

Krowech brought motions for summary judgment, directed verdict, and judgment notwithstanding the verdict, arguing in all three instances that respondents' 1991 claim of sexual abuse were barred by the statute of limitations.

On an appeal from summary judgment, we ask two questions: (1) whether there are any genuine issues of material fact and (2) whether the lower courts erred in their application of the law.

State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).

In reviewing a directed verdict, we make an independent determination of the sufficiency of the evidence to present a fact question to the jury.

Nemanic v. Gopher Heating & Sheet Metal, 337 N.W.2d 667, 669 (Minn. 1983).

In reviewing the facts in a case where a motion for judgment notwithstanding the verdict has been denied, we must affirm if there is any competent evidence reasonably tending to sustain the verdict.

Rettman v. City of Litchfield, 354 N.W.2d 426, 429 (Minn. 1984).

Generally, torts resulting in personal injury are subject to a two-year statute of limitations. Minn. Stat. ' 541.07 (1990). If a plaintiff is under the age of 18 when the cause of action accrues, however, the statute of limitations is suspended until one year after the plaintiff reaches the age of majority. Minn. Stat. ' 541.15(1) (1990). Moreover, cases of alleged sexual abuse are subject to a special "delayed discovery" rule, providing:

Limitations period. (a) An action for damages based on personal injury caused by sexual abuse must be commenced within six years of the time the plaintiff knew or had reason to know that the injury was caused by the sexual abuse.

* * * *

(d) This section does not affect the suspension of the statute of limitations during a period of disability under section 541.15.

Minn. Stat. ' 541.073, subd. 2 (Supp. 1991) (emphasis added).

Therefore, the issue becomes a fact question of when a reasonable person in a claimant's position should have known that his or her injuries were caused by sexual abuse. This requires an objective inquiry and is normally a question of fact for the jury. M.L. v. Magnuson, 531 N.W.2d 849, 855 (Minn. App. 1995), review denied (Minn. July 20, 1995). Nevertheless, summary judgment is appropriate when there is overwhelming evidence that a reasonable person should have known he or she was abused. See Roe v. Archdiocese of St. Paul & Minneapolis, 518 N.W.2d 629, 632 (Minn. App. 1994) (affirming summary judgment), review denied (Minn. Aug. 24, 1994).

The supreme court recently construed Minn. Stat. ' 541.073, the delayed-discovery statute, for the first time. Blackowiak v. Kemp, 546 N.W.2d 1 (Minn. 1996). In Blackowiak, the plaintiff claimed that in 1970 or 1971, when he was 11 years old, he was sexually abused by his junior high school counselor. Id. at 2. At the time of the alleged abuse, Blackowiak warned a friend to stay away from the counselor, and he told his mother that the counselor was doing something "wrong" to him. Id. Prior to 1981, he saw several counselors, but he was unable to discuss the abuse because of the feelings of guilt and shame. Id. The supreme court ruled that evidence a plaintiff knows he or she was abused is equivalent to evidence that the plaintiff knows the abuse caused injury. Id. at 3. Moreover, evidence that a plaintiff felt shame is tantamount to evidence that the plaintiff knows the abuse caused psychological injury. Id. Therefore, Blackowiak's 1992 complaint was barred by the six-year statute of limitations. Id.

Respondents draw several distinctions between Blackowiak and this case: (1) respondents' younger ages at the time of abuse; (2) Krowech's closer relationship to respondents' family; (3) the longer time frame in which Krowech's abuse occurred; and (4) Blackowiak's "adult acknowledgements" of the abuse before his apparent understanding that he was injured by the abuse. These are distinctions without a difference. Respondents testified that as early as 1983 they knew they had been abused, and they knew it was wrong. Pursuant to Blackowiak, as a matter of law they knew in 1983 that the abuse caused them injury. Therefore, in accordance with Minn. Stat. ' 541.073, the statute of limitations ran on Grant's claim in 1989, six years after he knew he was abused. Under Minn. Stat. ' 541.15, the statute of limitations ran on Shannon's claim in 1990, one year after he reached the age of majority. [1]

Reversed.


Footnotes

[1] The six-year statute of limitations expired while Shannon was 18; therefore, the statute was tolled one more year.