may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
Arthur Donald Dickson,
Filed September 9, 1997
Hennepin County District Court
File No. PI9417392
Marc G. Kurzman, Kurzman, Grant & Ojala, 219 Southeast Main Street, Suite 403, Minneapolis, MN 55414 (for appellant)
Michael J. McGuire, Rider, Bennett, Egan & Arundel, LLP, 2000 Metropolitan Centre, 333 South Seventh Street, Minneapolis, MN 55402 (for respondent)
Considered and decided by Amundson, Presiding Judge, Norton, Judge, and Peterson, Judge.
John Doe brought a negligent infliction of emotional distress action against Arthur Dickson, alleging that Dickson had sexually abused him from 1961 until 1979. Dickson moved for summary judgment on the ground that the statute of limitations expired before Doe began the action. The district court granted the motion, and a judgment of dismissal was entered. We affirm.
In November 1994, appellant John Doe began an action for battery and intentional infliction of emotional distress against respondent Arthur Dickson, alleging that Dickson repeatedly had subjected him to acts of sexual molestation and sexual abuse from 1961 until he turned 18 in 1979. Doe states that he repressed his memory and did not recall the alleged sexual abuse until November 17, 1988. Doe later amended the complaint by adding a cause of action for negligent infliction of emotional distress based on the same alleged acts of sexual abuse and sexual molestation. Although neither the complaint nor the amended complaint specifically described any of the acts allegedly committed by Dickson, both alleged that Dickson acted intentionally in sexually abusing Doe.
Dickson moved for summary judgment on the ground that the statute of limitations expired before Doe began the action. The district court granted Dickson's motion, and judgment was entered dismissing all of Doe's claims. Doe appeals from the judgment. He concedes that under Sarafolean v. Kauffman, 547 N.W.2d 417 (Minn. App. 1996), review denied (Minn. July 10, 1996), the district court properly dismissed his battery and intentional infliction of emotional distress claims. He argues that the district court erred in dismissing his claim for negligent infliction of emotional distress.
D E C I S I O N
On appeal from a summary judgment, this court must determine whether any genuine issues of material fact exist and whether the district court erred in applying the law. Offerdahl v. University of Minn. Hosps. & Clinics, 426 N.W.2d 425, 427 (Minn. 1988). We must view the evidence in the light most favorable to the nonmoving party. Id.
In 1989, the legislature enacted the delayed discovery rule amending the limitations period for sexual abuse actions:
An action for damages based on personal injury caused by sexual abuse must be commenced, in the case of an intentional tort, within two years, or, in the case of an action for negligence, within six years of the time the plaintiff knew or had reason to know that the injury was caused by the sexual abuse.
1989 Minn. Laws ch. 190, § 2, codified at Minn. Stat. § 541.073. The enactment expressly applied to actions "pending on or commenced on or after" its effective date. Id., § 6.
Doe recalled the sexual abuse on November 17, 1988. Under Minn. Stat. § 541.073, he had until November 17, 1994 to file an action for negligence arising out of the sexual abuse. See Sarafolean v. Kauffman, 547 N.W.2d 417, 420-21 (Minn. App. 1996) (explaining retroactive application of Minn. Stat. § 541.073), review denied (Minn. July 10, 1996). Doe filed this action prior to November 17, 1994.
Dickson argues that the district court properly dismissed Doe's negligent infliction of emotional distress claim because it arose from intentional acts of sexual abuse, not from negligence. The district court did not state its reason for granting Dickson's summary judgment motion. But this court will affirm a summary judgment if it can be sustained on any grounds. Myers Through Myers v. Price, 463 N.W.2d 773, 775 (Minn. App. 1990), review denied (Minn. Feb. 4, 1991); see also Northway v. Whiting, 436 N.W.2d 796, 798 (Minn. App. 1989) (this court may affirm a summary judgment based on grounds other than those relied on by the district court).
The elements of a claim of negligent infliction of emotional distress are (1) a negligent act that (2) causes emotional distress and (3) an accompanying physical injury. Christenson v. Argonaut Ins. Cos., 380 N.W.2d 515, 518 (Minn. App. 1986), review denied (Minn. Mar. 27, 1986). Doe does not cite any acts other than acts of sexual abuse to support his claim for negligent infliction of emotional distress.
In the context of intentional act exclusions in homeowners insurance policies, when an action arises from a sexual assault, the supreme court has declined to allow plaintiffs to avoid the exclusions by pleading a cause of action in negligence. In Allstate Ins. Co. v. S.F., 518 N.W.2d 37, 41 (Minn. 1994), the supreme court held that the victim of a sexual assault by the insured and two of his friends could not obtain insurance coverage by alleging a claim for negligent infliction of emotional distress. The court explained:
The complainant alleges that S.F., R.K. and Doe, by entering complainant's home, placed her in a "zone of danger of physical impact," and, as a result, plaintiff suffered the negligent infliction of emotional distress. This allegation, however, amounts to nothing more than a claim that the three men entered plaintiff's home to assault her sexually; in other words, this allegation is just a variation of the intentional assault claims, which are barred by the intentional act exclusion.
* * * [C]omplainant also argues that the insured negligently abandoned her; that after the insured had consensual sex with her in the apartment, he left the apartment, notwithstanding her request that he stay, when he knew or should have known that the other two men would sexually assault her. The difficulty with this theory * * * is that it attempts to isolate one aspect of the insured's conduct from his whole conduct that evening and then label it negligence. In fact, however, if complainant's version of events is true, the sexual assaults that evening were part of an overall intentional plan on the part of the three men to use plaintiff for their sexual pleasure. This is reprehensible conduct, but it is intentional reprehensible conduct for which all three defendants are liable to plaintiff for intentional assault and battery.
Id. at 40-41. In another intentional act exclusion case, the supreme court concluded that a "[s]exual assault on an underage victim was ipso facto intentional conduct because one cannot negligently assault another." R.W. v. T.F., 528 N.W.2d 869, 873 (Minn. 1995) (citing Estate of Lehmann v. Metzger, 355 N.W.2d 425 (Minn. 1984)). The supreme court also has noted "the illogic of alleging 'negligence' in transmission of a sexually transmitted disease where the sexual act itself was unconsented" and questioned "how an unconsented sexual contact gives rise to negligent injury." Id. at 873 n.4.
The reasoning in the intentional act exclusion cases is applicable to this case. A person who acts negligently
does not desire to bring about the consequences which follow, nor does he know that they are substantially certain to occur, or believe that they will.
W. Prosser & W. Keeton, The Law of Torts, § 31, at 169 (5th ed. 1984). In contrast,
[t]he word "intent" is used * * * to denote that the actor desires to cause consequences of his act, or that he believes that the consequences are substantially certain to result from it.
Restatement (Second) of Torts § 8A (1965). By its nature, sexual abuse of a minor by an adult is an intentional act. The complaint and the amended complaint allege that Dickson acted intentionally in sexually abusing Doe and do not allege that Dickson committed any negligent acts. Therefore, the district court properly dismissed Doe's claim for negligent infliction of emotional distress.