This opinion will be unpublished and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

C7-96-2181

Marlys K. Latzke, et al.,

Appellants,

v.

Robert L. Loewe, et al.,

Respondents.

Filed April 1, 1997

Affirmed

Huspeni, Judge

Le Sueur County District Court

File Nos. C9-95-349/C5-95-350

Walter J. Gates III, Kunard, Barnett, Kakeldey, & Gates, Ltd., 226 North Broad Street, P.O. Box 3008, Mankato, MN 56002 (for Appellants)

Daniel A. Haws, Kammey M. K. Mahowald, Murnane, Conlin, White & Brandt, 1800 Piper Jaffray Plaza, 444 Cedar Street, St. Paul, MN 55101 (for Respondents)

Considered and decided by Huspeni, Presiding Judge, Parker, Judge, and Schumacher, Judge.

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

HUSPENI, Judge

Appellants, husband and wife, challenge summary judgment granted to respondents on the ground that the statute of limitations had run on appellant wife's claim of sexual abuse. Because the record clearly demonstrates that appellant knew of the abuse at least six years prior to bringing her claim, we affirm.

FACTS

Appellants Marlys K. Latzke and Frederic W. Latzke, husband and wife, brought this action against Marlys Latzke's brothers, respondents Robert L. Loewe and Harley A. Loewe, seeking damages for respondents' alleged sexual abuse of Marlys.

Harley, born in 1940, Robert, born in 1942, and Marlys, born in 1943, all lived in the same household until August 1963. Marlys alleges that between 1955 and 1961 her brothers sexually abused her at their family home.

Harley allegedly began to abuse Marlys when she was about 12 years old and continued to abuse her several times a year for the next six years. Marlys claims that at first Harley only fondled her, but as time went on he forced sexual intercourse with her. Robert allegedly assaulted Marlys three times, the first when she was about 15 years old; he raped her once and fondled her twice.

Marlys testified in her deposition that Robert and Harley used force against her will; that she physically tried to restrain them, but she was unable to; that during the incidents with Harley when she screamed he put his hand over her mouth; that at the time she knew the sexual contact was not appropriate; that she cried and became physically ill after the abuse occurred; that each time respondents entered her room she was afraid there would be more sexual abuse; and that at the time she was embarrassed and humiliated by the abuse. Both respondents stopped the abuse in the early summer of 1961, and Marlys claims to have put the events out of her mind.

In his deposition, appellant Frederic Latzke testified that from the time they were first married in August 1963, Marlys cried or whimpered at night when they were in bed, and that when Frederic asked what was wrong Marlys responded, "I love you. It's nothing to do with you." He further testified that Marlys later admitted that the crying had to do with being abused by her brothers.

Appellants brought this action in 1994. Respondents moved for summary judgment, arguing that the statute of limitations had run. At the hearing, appellants' counsel admitted that Marlys knew that the alleged abuse was sexually, morally, and religiously wrong when it occurred. The court granted respondents' motion.

D E C I S I O N

On an appeal from summary judgment, the reviewing court asks whether there are any genuine issues of material fact in dispute, and whether the trial court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). The parties do not dispute the facts.

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 (1994). If a plaintiff is under age 18 when the cause of action accrues, the statute is suspended until the plaintiff reaches the age of majority. Minn. Stat. § 541.15(a)(1) (1994). An objective, reasonable person standard is used to determine when a claimant knew or should have known that the injuries were caused by sexual abuse. M.L. v. Magnuson, 531 N.W.2d 849, 855 (Minn. App. 1995), review denied (Minn. July 20, 1995).

Blackowiak v. Kemp, 546 N.W.2d 1 (Minn. 1996), recently construed the delayed discovery statute. The claimant in Blackowiak 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 knew that what the counselor was doing was wrong; Blackowiak was unable to discuss it because of his feelings of guilt and shame. Id. The court held that evidence that a plaintiff knows that he or she was abused is equivalent to evidence that the plaintiff knows the cause of the injury. Id. at 3. The court stated that whether a plaintiff had reason to know of the abuse is generally a question of fact for the jury; however, where a plaintiff's own deposition testimony clearly demonstrates that she was aware of the alleged sexual abuse at least six years prior to bringing the claim, the cause of action has expired. Id.

Appellant argues that even though there were signs that something was wrong, the evidence does not show that prior to 1994, when she brought her claim, Marlys knew or should have known that she was abused.[1] We cannot agree. There is overwhelming evidence that Marlys was aware of the abuse at the time it occurred and after her marriage in 1963. Because one is injured upon being abused,[2] and because the evidence clearly demonstrates that Marlys knew of the abuse at least six years prior to bringing her claim, there exists no genuine issue of material fact and summary judgment dismissal of the complaint was appropriate.

Affirmed.

[ ]1Appellant cites Doe v. Redeemer Lutheran Church, 555 N.W.2d 325 (Minn. App. 1996), review denied (Minn. Jan. 15, 1997) as factually similar. Redeemer is both factually and procedurally distinguishable. The abusive acts in Redeemer did not involve force, violence, or knowledge of being sexually abused when they occurred. Further, Redeemer involved review of a jury verdict, not a trial court's grant of summary judgment.

[ ]2See Blackowiak, 546 N.W.2d at 3 (holding that as a matter of law that one is injured upon being sexually abused).