This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C6-96-1619

W.J.L.,

Appellant,

vs.

Caryl J. Bugge, individually and in her official capacity as

a teacher, coach, and counselor at Cooper High School,

Respondent,

Elmer Kamppainen, individually and in his official capacity as

principal at Cooper Senior High School; et al.,

Respondents.

Filed January 28, 1997

Affirmed in part, Reversed in part, and Remanded

Lansing, Judge

Concurring in part, Dissenting in part, Randall, Judge

Hennepin County District Court

File No. 952899

Edward M. Glennon, Ann E. Kennedy, Lindquist & Vennum P.L.L.P., 4200 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402 (for Appellant)

R. Christopher Barden, Barden & Associates, 4025 Quaker Lane North, Plymouth, MN 55411 (for Appellant)

Barbara A. Burke, Robert J. McGuire, Andrea E. Reisbord, Cousineau, McGuire & Anderson, Chartered, 600 Travelers Express Tower, 1550 Utica Avenue South, Minneapolis, MN 55416-5318 (for Respondent Caryl J. Bugge)

Gregory W. Deckert, Timothy S. Mangan, Bassford, Lockhart, Truesdell & Briggs, P.A., 3500 Multifoods Tower, 33 South Sixth Street, Minneapolis, MN 55407 (for Respondents Elmer Kamppainen, et al.)

Considered and decided by Norton, Presiding Judge, Lansing, Judge, and Randall, Judge.

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

LANSING, Judge

A former student challenges the district court's summary judgment, dismissing as time-barred her action for injuries from alleged sexual abuse by a former high school teacher. We conclude that the claims against the former teacher are not time-barred as a matter of law under Minn. Stat. § 541.073 (1994). But because that statute does not apply to claims based on the doctrine of respondeat superior, and because the negligence claims are not based on evidence that raises a genuine issue of material fact, we affirm summary judgment for the principal and school district. Affirmed in part, reversed in part, and remanded.

FACTS

The events at issue in this action occurred between March 1978 and August 1980. W.J.L. claims that during that time she was sexually abused by Caryl Bugge, a high school teacher. According to the complaint, Bugge initiated the first incident of sexual contact toward the end of W.J.L.'s junior year of high school, approximately one month before W.J.L. turned seventeen. The incidents allegedly continued at least once a month until W.J.L. left Minnesota to attend college in California.

Bugge and W.J.L. first became acquainted when W.J.L. was a sophomore and Bugge was her homeroom teacher. W.J.L. also took at least one math class from Bugge. During her junior year, W.J.L. had difficulties at home with her family: her parents had marital troubles; her father was an alcoholic and physically abusive; and W.J.L. also claims that her mother occasionally hit her. W.J.L. moved out of her family's home and into Bugge's apartment in the fall of 1978. W.J.L. claims that the move was made at the suggestion of Bugge and her school's guidance counselor. W.J.L.'s parents approved of the arrangement.

W.J.L. alleges that Bugge first sexually abused her a few months before W.J.L. moved into Bugge's apartment. Describing her response to the abuse after therapy in 1992, W.J.L. stated that she "died" on the first day that the abuse occurred. Once W.J.L. and Bugge began living in the same one-bedroom apartment, they regularly shared one bed. W.J.L. claims to have felt "confused" as the abuse continued over the next two years.

W.J.L. moved to California in August 1980 and returned to Minnesota sometime in 1985 or 1986, but she did not move back with Bugge. One day in 1985 or 1986, Bugge saw W.J.L. on a tennis court and greeted her, but W.J.L. ignored her and did not respond. Approximately one year after that incident, W.J.L. met Bugge for lunch, but the two had no other subsequent contact. W.J.L. claims that she eventually stopped playing tennis after she returned to Minnesota because "it felt creepy," but she did not attribute this feeling to Bugge at that time.

In 1992 W.J.L. sought counseling for relationship problems. That summer, while reading a book that referred to same-sex sexual abuse, W.J.L. claims that she realized that she had been abused by a woman. She told her therapist, in September 1992, that she had been sexually abused by Bugge.

Claiming damages resulting from the incidents of abuse, W.J.L. brought this action against Bugge, the school principal Elmer Kamppainen, and Independent School District No. 281. The district court dismissed W.J.L.'s claims on summary judgment, ruling that they were untimely filed. W.J.L. appeals.

D E C I S I O N

I

All of the claims that W.J.L. reasserts on appeal were dismissed by the district court on the ground that they were untimely filed. The district court held that W.J.L.'s claims against Bugge were barred by the delayed discovery statute of limitations, Minn. Stat. § 541.073 (1994). Subdivision 2(a) of the statute provides:

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.

Id., subd. 2(a).

Whether this statute applies to bar an action is dependent on "the time at which the complainant knew or should have known that he/she was sexually abused." Blackowiak v. Kemp, 546 N.W.2d 1, 3 (Minn. 1996). We analyze this issue under an objective, reasonable person standard. Id. While this determination may be made on summary judgment if the record "overwhelmingly demonstrates" that the plaintiff knew or should have known of the abuse, it is "generally a question of fact for the jury." Id.; see e.g., Doe v. Redeemer Lutheran Church, 555 N.W.2d 325 (Minn. App. 1996) (concluding that issue could not be decided as a matter of law when testimony from plaintiff, his experts and treating therapist supported jury verdict for plaintiff), review denied (Minn. Jan. 15, 1997).

Applying the delayed discovery statute, the supreme court in Blackowiak held that summary judgment was appropriate on the grounds that more than six years before a plaintiff brought an action alleging sexual abuse by a former schoolteacher, (1) the plaintiff had attended counseling sessions, but never discussed the abuse because of his shame; and (2) he became enraged when he saw his alleged abuser accompanied by a young boy, who he assumed was being abused. Blackowiak, 546 N.W.2d at 3.

We believe that the evidence that reasonably supported an inference of knowledge in Blackowiak is not present in this case. Unlike the plaintiff in Blackowiak, W.J.L. did not because of "shame" deliberately refuse to discuss her experience of abuse with therapists more than six years before filing suit. Rather, it appears that W.J.L. did not discuss the abuse with others until 1992, because she never thought of it at all after she moved out of Bugge's apartment in 1980. In addition W.J.L. did not have a pre-therapy reaction to Bugge comparable to the plaintiff's rage in Blackowiak when he encountered his alleged abuser with a young boy who he believed was being abused. Although an incident did occur in 1985 or 1986 when W.J.L. ignored an attempt by Bugge to greet her on a tennis court, W.J.L.'s indifferent reaction at that time does not conclusively demonstrate that W.J.L. should have had reason to believe then that she had earlier been sexually abused by Bugge.

We also find that W.J.L.'s case is distinguishable from other cases in which the evidence clearly established the time at which a plaintiff knew or should have known that he or she had been abused. Prior to Blackowiak this court held that summary judgment was appropriate in several cases in which we used a two-pronged analysis to apply Minn. Stat. § 541.073, by examining when (1) the plaintiff knew or should have known that she had been sexually abused, and when (2) she knew or should have known that her injuries were caused by sexual abuse. See, e.g., K.B. v. Evangelical Lutheran Church in America, 538 N.W.2d 152, 156 (Minn. App. 1995). Although under Blackowiak we are no longer required to divide our analysis into two separate inquiries, some of the pre-Blackowiak considerations in determining the propriety of summary judgment continue to be relevant.

Specifically, in evaluating the issue of whether a plaintiff knew or should have known that she had been abused, we have considered the following factors: the age of the plaintiff at the time of the abuse; contemporaneous disclosures to others suggestive of the abuse; the plaintiff's feelings, such as sadness or depression, at the time of the abusive incidents or at the end of the abusive relationship; whether the plaintiff attempted to escape to a new location away from the abuser; whether the plaintiff claims to have never forgotten about the abuse; and the development of problems, such as drug use, after the abuse. See, e.g., id., at 156-57 (affirming summary judgment for defendants when plaintiff was between eighteen to nineteen years old at time of abuse, felt sense of loss after her relationship with abuser ended, "never forgot" about abuse, and told her husband and therapist about it); S.E. v. Shattuck-St. Mary's Sch., 533 N.W.2d 628 (Minn. App. 1995) (plaintiff was fourteen years old at time of abuse, cried after each abusive incident, began receiving poor grades, developed alcohol problems, ran away to avoid going to school where abuser taught, was institutionalized and "never forgot" abuse), review denied (Minn. Aug. 30, 1995); Green v. Sawdey, 529 N.W.2d 520 (Minn. App. 1995) (plaintiff's behavior changed negatively after abusive relationship ended, and she disclosed abuse to fiancé), review denied (Minn. June 14, 1995); Roe v. Archdiocese of St. Paul & Minneapolis, 518 N.W.2d 629 (Minn. App. 1994) (plaintiff was abused for two years beginning at age eighteen, made contemporaneous disclosures, felt abused and abandoned when relationship ended, and moved to another state afterwards in order "to get away" from abuser), review denied (Minn. Aug. 24, 1994); ABC v. Archdiocese of St. Paul & Minneapolis, 513 N.W.2d 482, 486-87 (Minn. App. 1994) (plaintiff frequently cried after incidents of abuse, made contemporaneous disclosures to others, experienced sadness and depression after relationship ended, and was between ages fifteen and twenty-six when abuse occurred).

Examining these considerations in W.J.L.'s case, we conclude that the evidence relating to when W.J.L. knew or should have known that she had been sexually abused is not sufficiently conclusive to support summary judgment under the delayed discovery statute. In particular the evidence fails to demonstrate that W.J.L. disclosed the abuse to anyone at the time it occurred or prior to her therapy sessions in 1992 or that W.J.L. moved to California to escape from Bugge rather than to take advantage of a tennis scholarship. Nor is there evidence to show that W.J.L. experienced depression or sadness contemporaneously with the abuse or immediately following the end of her relationship with Bugge. Although W.J.L.'s medical records indicate that by the 1990s she was able to remember that she had felt as though she had "died" from the abuse and had been betrayed by Bugge, these statements reflect her present assessment of her past emotional response and do not support a finding that, as a matter of law, W.J.L. comprehended the abuse before February 1989.

Because there is a genuine issue as to when W.J.L. knew or should have known that she had been abused, we remand her claims against Bugge for further proceedings in the district court.

Bugge, Kemppainen, and the school district have filed motions to strike from the record on appeal an affidavit from one of W.J.L.'s experts because it was not part of the district court file. W.J.L. concedes that the phrasing of her expert psychologist's opinion in the supplemental affidavit--that W.J.L. should not have known that she was abused until time had passed and she had undergone therapy--was structured to conform to the language used in Blackowiak, which the supreme court decided three days before the district court issued its decision in this case. W.J.L. did not attempt to submit her supplemental affidavit until November 1996, at the time she filed her reply brief on appeal.

"The papers filed in the trial court, the exhibits, and the transcript of the proceedings, if any, shall constitute the record on appeal in all cases." Minn. R. Civ. App. P. 110.01. We conclude that W.J.L.'s proposed supplementation does not fall within any permissible exceptions to this rule. See, e.g., Plowman v. Copeland, Buhl & Co., 261 N.W.2d 581, 583-84 (Minn. 1977) (allowing submission on appeal of conclusive, uncontroverted evidence for purpose of sustaining district court's judgment); Brosdahl v. Minnesota Mut. Fire & Cas. Co., 437 N.W.2d 695, 697-98 (Minn. App. 1989) (permitting consideration of documents relating to event occurring pending appeal and rendering appeal moot). Consequently, we grant the motion to strike and have not considered the supplemental affidavit as part of our determination of whether, as a matter of law, a reasonable person in W.J.L.'s position should have known that she had been sexually abused.

II

Although we conclude that the delayed discovery statute does not bar W.J.L.'s claims as a matter of law, Kemppainen and the school district argue separate grounds on which we should affirm the district court's grant of summary judgment on W.J.L.'s claims against them. See Brecht v. Schramm, 266 N.W.2d 514, 520 (Minn. 1978) (calling for affirmance when district court arrives at correct decision, regardless of theory underpinning its decision).

W.J.L. asserts two types of claims against Kemppainen and the school district: (1) claims based on the doctrine of respondeat superior, and (2) negligence claims premised on direct liability. The delayed discovery statute does not apply to claims premised on the doctrine of respondeat superior. Oelschlager v. Magnuson, 528 N.W.2d 895, 901 (Minn. App. 1995), review denied (Minn. Apr. 27, 1995). Therefore, the district court properly dismissed those claims as untimely. See, e.g., Minn. Stat. § 541.07(1) (1994) (setting two-year limitation for battery and various tort actions).

While the delayed discovery statute does apply to W.J.L.'s second set of claims, because they are based on direct liability, we conclude that the evidence in support of those three claims--general negligence, negligent retention, and negligent supervision--is insufficient to create a genuine issue of material fact for trial.

We have affirmed summary judgment on negligence claims against an employer when the plaintiff alleging sexual abuse by an employee failed to produce evidence that any employees knew of the abuse until after the incidents of abuse ended, admitted that the incidents occurred in private and that he disclosed them to no one, and conceded that he had no evidence that the employer knew that the employee would engage in abuse. Winkler v. Magnuson, 539 N.W.2d 821, 828 (Minn. App. 1995), review denied (Minn. Feb. 13, 1996). Because similar circumstances are present here, summary judgment is appropriate on W.J.L.'s general negligence claims.

In order to prevail on her claims of negligent retention, W.J.L. must demonstrate that, during the course of employment, Kemppainen or the school district became aware or should have become aware of problems indicating Bugge's unfitness, but failed to take affirmative steps to address those problems. See Yunker v. Honeywell, Inc., 496 N.W.2d 419, 423 (Minn. App. 1993) (outlining elements of claim), review denied (Minn. Apr. 20, 1993). W.J.L. argues that she has created genuine issues of fact on the elements by presenting evidence that Kemppainen and a few other school employees knew that W.J.L. came from a troubled home, that she moved into Bugge's apartment, that Bugge expressed a high degree of interest in her students' lives, and that she spent time with W.J.L. She does not contend that any school employees knew Bugge lived in a one-bedroom apartment, or that Bugge and W.J.L. occasionally shared a bed. Under these circumstances we conclude that the evidence that W.J.L. has presented is insufficient to overcome summary judgment on her negligent retention claims.

We further hold that summary judgment for Kemppainen and the school district is appropriate on W.J.L.'s claims of negligent supervision. A party asserting a claim of negligent supervision must prove, as a threshold matter, "that the employee's actions occurred within the scope of employment" for example, while on work premises or while using the employer's chattels. M.L. v. Magnuson, 531 N.W.2d 849, 858 (Minn. App. 1995), review denied (Minn. July 20, 1995). Yet W.J.L. does not allege that any incidents of abuse occurred at school or involved school property. Liability for negligent supervision is also limited to injuries caused by "the foreseeable misconduct of an employee." Id. at 858 (citation omitted). But the record lacks any complaints of inappropriate sexual conduct by Bugge toward any students, including W.J.L., prior to the filing of this action. We therefore conclude that there are no genuine issues of material fact relating to W.J.L.'s negligent supervision claims.

Finally, Kemppainen and the school district also argue that the doctrine of discretionary immunity provided an independent basis for affirming summary judgment against W.J.L. on her negligence claims. Because we conclude that the evidence of negligence is insufficient as a matter of law, we do not reach the issue of immunity.

Affirmed in part, reversed in part, and remanded.

RANDALL, Judge (concurring in part, dissenting in part).

I concur in part and dissent in part.

I concur in that part of the majority affirming the trial court on the dismissal of all claims by appellant, except the claims against her former teacher, respondent Caryl J. Bugge.

I dissent on the majority's conclusion that the trial court improperly found that appellant's claims against Bugge were time-barred under Minn. Stat. § 541.073 (1994). I conclude, as the trial court did, that appellant's claim against Bugge is time-barred by years.

I find Blackowiak v. Kemp, 546 N.W.2d 1, 3 (Minn. 1996) controlling on the issue of appellant's claims against respondent Bugge. In Blackowiak, the Minnesota Supreme Court rejected the former two-pronged analysis applied by the Minnesota Court of Appeals. Id. The Blackowiak rule focuses on the first prong of the old test, "knew or should have known" and rejects the second prong, "knew the injuries were caused by the sexual abuse," as focusing improperly on causation factors. Id.

Interestingly enough, Blackowiak was decided on April 19, 1996, three days before the district court issued its decision in this case. The district court analyzed the statute of limitations issue under the old two-pronged rule and concluded that as a matter of law, both prongs had been met.

A number of cases both before and after Blackowiak have affirmed judgment for defendants using the "Blackowiak rule" or its equivalent. See, e.g., ABC v. Archdiocese of St. Paul & Minneapolis, 513 N.W.2d 482, 486 (Minn. App. 1994) (focusing only on whether victim "had reason to know" she had been a victim of sexual abuse). There the record overwhelmingly demonstrated and established conclusively that the plaintiff knew or should have known of the abuse. Id. at 487; see also K.B. v. Evangelical Lutheran Church, 538 N.W.2d 152, 156 (Minn. App. 1995) (applying "knowledge of abuse test"); S.E. v. Shattuck-St. Mary's Sch., 533 N.W.2d 628, 632 (Minn. App. 1995) (affirming summary judgment for defendants when plaintiff was 14 years old at time of abuse, cried after each abusive incident, began receiving poor grades, developed alcohol problems, ran away to avoid going to school where his abuser taught, was institutionalized and "never forgot" the abuse), review denied (Minn. Aug. 30, 1995); Green v. Sawdey, 529 N.W.2d 520, 522 (Minn. App. 1995) (affirming summary judgment for defendants when plaintiff's behavior changed negatively after abusive relationship with high school band director ended, and she disclosed abuse to her fiancé), review denied (June 14, 1995); Roe v. Archdiocese of St. Paul & Minneapolis, 518 N.W.2d 629, 633 (Minn. App. 1994) (affirming summary judgment for defendants when plaintiff was abused by priest for two years beginning when she was 18 years old, made contemporaneous disclosures, felt (ab)used and abandoned when the relationship ended, and moved to another state afterward in order "to get away" from her abuser), review denied (Minn. Aug. 24, 1994).

The trial court, as part of its memorandum supporting its decision in favor of respondent Bugge, stated in pertinent part:

Sometime in March of 1978, when Plaintiff was 16 years, 11 months of age, Plaintiff alleges that she was first sexually abused by Bugge. This alleged abuse continued until Plaintiff was 19 years of age. The contact between Bugge and Plaintiff was Plaintiff's first sexual contact with another female, though she had engaged in consensual sexual contact with boyfriends prior to the alleged abuse by Bugge. W.J.L. Depo. pp. 77, 104-05.

As a result of the alleged abuse by Bugge, Plaintiff asserts that she experienced "confusion" over sex and gender issues during the 1980s, mental and emotional distress, and distrust of authority figures, all constituting personal injury proximately caused by the abuse. W.J.L. Depo. pp. 133, 164. Plaintiff initiated this action on February 2, 1995.

(Emphasis added.)

The trial court in its memorandum applied the appropriate law:

Application to the Case

The statute of limitations applicable to this action provides that

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.

Minn. Stat. § 541.073, subd. 2(a) (1992).

First the trial court said:

The Court determines, after a careful review of the record and applicable case law, that a reasonable person in Plaintiff's position knew or had reason to know that the alleged sexual contact with Bugge constituted sexual abuse at the time it occurred, or at a time no later than the termination of the relationship in 1980. See ABC, 513 N.W.2d at 486.

Then the trial court went on to answer the old two-prong question of whether the plaintiff "knew or had reason to know that her injuries were caused by the sexual abuse."

The trial court's memorandum stated in part:

The next question is whether Plaintiff knew or had reason to know that her injuries were caused by the sexual abuse. Plaintiff has testified that before the alleged abuse, she felt herself to be wholly heterosexual in orientation. After the alleged abuse, Plaintiff states that she experienced "confusion" as to her sexual identity, and became involved in relationships with other women as well as in heterosexual relationships. This "confusion" occurred, according to Plaintiff's own deposition testimony, no later than the mid-1980s. The close proximity in time between the alleged abuse and the confusion Plaintiff experienced should have served to put a reasonable person in her position on notice that there was at least some possible connection between her mental state and the alleged abuse. Behavioral changes and experience of feelings of anxiety and depression following abuse have been held sufficient to put a reasonable person on such notice for the purposes of applying Minn. Stat. Sec. 541.073, subd. 2(a). See S.E., 533 N.W.2d at 632; Roe, 518 N.W.2d at 632.

Thus, whether appellant's claim is analyzed totally pre-Blackowiak, or partially pre- and partially post-Blackowiak, or analyzed strictly under the guidance of Blackowiak, I agree with the trial court that the answer comes out the same. Appellant's claims against respondent Caryl J. Bugge are time-barred by several years.

Thus, I dissent from the majority's opinion and would affirm the trial court on all issues.