This opinion will be unpublished and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

C2-96-2587

Janet Lund,

Appellant,

vs.

Joy Houghton, et al.,

f/d/b/a "Dogged Determination" and "Educare,"

Respondents.

Filed August 5, 1997

Affirmed

Schultz, Judge

[*]

Hennepin County District Court

File No. PI9604685

Philip G. Villaume, M. Michael Halverson II, Philip G. Villaume and Associates, 7900 International Plaza, Suite 675, Bloomington, MN 55425 (for Appellant)

Bradley J. Betlach, Bassford, Lockhart, Truesdell & Briggs, P.A., 3550 Multifoods Tower, 33 South Sixth Street, Minneapolis, MN 55402 (for Respondents)

Considered and decided by Willis, Presiding Judge, Huspeni, Judge, and Schultz, Judge.

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

SCHULTZ, Judge

Janet Lund appeals from an order of the district court granting summary judgment for respondents. We affirm.

FACTS

Appellant Janet Lund was under the care of respondents Christina Baldwin and Joy Houghton from 1981 until 1987. Respondents were unlicensed therapists practicing "transactional analysis" and "reparenting therapy," alleged therapeutic techniques popular at the time. Lund was approximately 31 years old at the time she became involved with respondents.

The conduct giving rise to Lund's complaint occurred primarily in 1981 and 1982 when Lund was under Baldwin's care. Lund alleges that during that time Baldwin touched her inappropriately, kissed her, and hugged her. Some of Baldwin's conduct persisted until 1985.

Lund brought an action in 1995 against Baldwin for personal injury caused by sexual abuse and against Houghton for negligent supervision. The district court granted summary judgment for respondents on the ground that Lund's claim was time-barred under the delayed discovery statute, Minn. Stat. § 541.073, subd. 2(a) (1996). This appeal followed.

D E C I S I O N

On appeals from summary judgments, this court must consider 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). An issue of fact is material if it would affect the outcome of the case. Zappa v. Fahey, 310 Minn. 555, 556, 245 N.W.2d 258, 259-60 (1976). The reviewing court must view the evidence in a light most favorable to the party against whom summary judgment was granted and accept as true the factual testimony produced by the nonmoving party. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993). When reviewing summary judgment based on the running of time under Minn. Stat. § 541.073 (1996), the reviewing court assumes that the accused committed sexual abuse, unless the district court has ruled otherwise. Roe v. Archdiocese of St. Paul, 518 N.W.2d 629, 631 (Minn. App. 1994), review denied (Minn. Aug. 24, 1994).

The district court held that Lund's claims against Baldwin were barred by the delayed discovery statute of limitations, Minn. Stat. § 541.073. 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. Whether the statute applies to bar an action for damages from sexual abuse depends on "the time at which the complainant knew or should have known that he [or] she was sexually abused." Blackowiak v. Kemp, 546 N.W.2d 1, 3 (Minn. 1996). The courts apply an objective, reasonable person standard to determine whether an individual "should have known" that he or she has been a victim of sexual abuse. Id. "Injury" cannot be temporally disconnected from "sexual abuse." Id. (stating that one is "injured" as a matter of law if one is sexually abused). Lund argues that her cause of action against Baldwin is still viable because she neither knew nor had reason to know that her injury was caused by sexual abuse until 1993.

The determination of when a reasonable person should know that he or she has been sexually abused is normally a question of fact. Scheffler v. Archdiocese of St. Paul & Minneapolis, 563 N.W.2d 767, 769 (Minn. App. 1997). Summary jdugment, however, is appropriate when there is "compelling evidence that a reasonable person in the same situation as the complainant" should have known that he or she was abused. Id.

In evaluating whether a plaintiff knew or should have known that she was the victim of sexual abuse, Minnesota courts have considered the age of the plaintiff at the time of the abuse, the plaintiff's feelings at the time of and subsequent to the incidents of abuse, and the development of problems after the abuse. See Blackowiak, 546 N.W.2d at 3 (reinstating summary judgment for defendant when plaintiff testified that he refused to discuss abuse with therapists for years before he brought his complaint because he was ashamed); Scheffler, 563 N.W.2d at 770 (reversing denial of summary jugment when plaintiff's deposition set forth the conduct complained of in detail and plaintiff's assertion that despite subsequent chemical dependency he "never forgot" the incident); K.B. v. Evangelical Lutheran Church, 538 N.W.2d 152, 156-57 (Minn. App. 1995) (affirming summary judgment for defendants when plaintiff was between 18 and 19 years old at the time of the last incident of abuse and felt a sense of loss after her relationship with her abuser ended); S.E. v. Shattuck-St. Mary's Sch., 533 N.W.2d 628, 631-32 (Minn. App. 1995) (affirming summary judgment for defendants when plaintiff was 14 years old at the time of the abuse, developed alcohol problems, and ran away after abuse occurred), review denied (Minn. Aug. 30, 1995); cf. Doe v. Redeemer Lutheran Church, 555 N.W.2d 325, 328 (Minn. App. 1996) (concluding that the issue of whether the victim knew or should have known of childhood sexual abuse could not be decided as a matter of law when testimony from plaintiff and his experts supported jury verdict for plaintiff), review denied (Minn. Jan. 15, 1997).

Lund, who was in her 30s when the incidents occured, stated in deposition testimony that one incident "scared" her at the time it occured and that when she saw the respondents hugging and holding other clients she considered the behavior "inappropriate."

This is not a "repressed memory" case, and Lund's deposition testimony indicates that she remembered the incidents in detail. Further, Lund's own memorandum of law in support of her motion in opposition to summary judgment stated that although she "knew about the occurrences of abuse perpetrated by Baldwin, she did not know that those acts were the cause of her damage." The district court appropriately rejected Lund's effort to save her cause of action by separating her abuse from her injury. See Blackowiak, 546 N.W.2d at 3 (deciding that abuse and injury are synonymous).

Although Lund asserts that "no ordinary, reasonable person would have known or had reason to know" that Baldwin's behavior constituted sexual abuse, and that Lund "reasonably" believed that the behaviors were a legitimate part of her treatment, these statements are conclusory and overly reliant on a subjective "victim's standard" rather than the objective standard mandated by the supreme court. See id. (rejecting subjective inquiry for objective standard). The egregious conduct Lund described and Lund's reaction to that conduct provided an adequate basis for the district court to conclude that, as a matter of law, Lund should have known, by 1985, that Baldwin's conduct constituted sexual abuse. We conclude that the district court appropriately granted summary judgment on the ground that Lund's claim was time-barred.

Lund sued Houghton on a theory of negligent supervision and respondeat superior. We agree with the district court that these claims are also time-barred. See Sarafolean v. Kauffman, 547 N.W.2d 417, 422 (Minn. App. 1996) (stating that the delayed discovery rule does not apply to claims based on respondeat superior and that such claims are governed by the generally applicable statute of limitations), review denied (Minn. July 10, 1996).

Affirmed.

[ ]* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.