Cramer v. Archdiocese of Cincinnati , 158 Ohio App. 3d 110 ( 2004 )

{¶ 29} I concur with Judge Hildebrandt's resolution of each assignment of error. I write separately only to stress the conceptual distinction between use of the discovery rule and the equitable doctrine of fraudulent concealment, as well as to highlight a constitutional issue not raised by either party but that I believe is worthy of discussion in a later case.

{¶ 30} As the majority correctly points out, the Ohio Supreme Court has restricted application of the discovery rule in sexual abuse cases to those in which the victim suffers repressed memory and only recalls the abuse at a later time. Ault v. Jasko (1994), 70 Ohio St. 3d 114, 1994-Ohio-376, 637 N.E.2d 870. The appellants concede that they do not and never have suffered from repressed memory. Absent allegations of repressed memory, the events that trigger the one-year statute of limitations for assault and battery also trigger the two-year statute of limitations for negligence claims against the tortfeasor's employer, at least where the victim should know about the possibility of such a claim. Doe v. First United MethodistChurch (1994), 68 Ohio St. 3d 531, 539, 1994-Ohio-531,629 N.E.2d 402. The case of Roman Catholic Diocese of Covington v. Secter (Ky.App. 1998), 966 S.W.2d 286, relied on by the appellants, reached the same conclusion.

{¶ 31} The doctrine of fraudulent concealment, on the other hand, shifts the focus away from the conduct of the plaintiff and onto that of the defendant. The doctrine would hold that the Archdiocese should be estopped to rely on the statute of limitations if it either engaged in active deception or violated a duty of disclosure, concealing material facts that prevented the discovery of the negligence claim against it. See Secter, supra, at 290, Cole v. Doe (Ind.App. 1997), 677 N.E.2d 1069,1074. Ohio courts that have considered the issue have held that the defendant must make a factual misrepresentation for the doctrine to apply. Livingston v. Diocese of Cleveland (1998),126 Ohio App. 3d 299, 314, 710 N.E.2d 330; A.S. v. FairfieldSchool District, 12th Dist. No. CA 2003-04-088, 2003-Ohio-6260, ¶ 8. I disagree with such a strict application of the doctrine and would follow the rule as it is stated in Secter, requiring only a showing of concealment of facts or information that obstructs the victim from investigating or filing suit.

{¶ 32} Because it is equitable in nature, however, I believe that the doctrine of fraudulent concealment, while focusing on the conduct of the defendant, must also consider the actions, or lack thereof, of the plaintiff. One principle of equity is that those who do not seek to enforce a right at the proper time risk the forfeiture of that right. Although it is understandable why underage victims of sexual abuse by the clergy are reticent to come forward into the legal arena to challenge the hierarchy of their church, it is also reasonable to require evidence that they would have done so, after reaching the age of majority and within the two-year statute of limitations, but for their reliance upon the church's conduct, misrepresentation, or silence. In sum, I do not believe that the statute of limitations should be avoided under the doctrine of fraudulent concealment absent affirmative evidence of detrimental reliance, as otherwise the doctrine becomes little more than an improper makeshift version of the discovery rule.

{¶ 33} Finally, I agree with the majority that we have no other option but to revive Vonderheide's claim against Father Berning pursuant to R.C. 2305.15. But I question the application of this statute in light of the availability of valid service by certified mail for non-residents who commit torts in Ohio. See Civ.R. 4.3(A)(3) and (A)(9). An argument can certainly be made that the tolling of the statute of limitations for non-residents of Ohio violates the Commerce Clause, as it penalizes people who move out of state by imposing a longer statute of limitations on them than on those who remain in the state. A similar argument was successful in Bendix Autolite Corp. v. Midwesco Enterprises,Inc. (1980), 486 U.S. 888, 108 S. Ct. 2218, as limited byJohnson v. Rhodes (2000), 89 Ohio St. 3d 540, 733 N.E.2d 1132, which recognized the chilling effect of a statute of limitations that is perpetually tolled for nonresident corporations without a statutory agent in Ohio. In my view, in an appropriate case where this issue is raised and properly briefed, we must address whether the same reasoning applies to non-resident individuals.

Painter, J., concurs with the foregoing opinion by Gorman,J.