Clay v. Kuhl

In Clay v. Kuhl (1998), 297 Ill. App. 3d, the Illinois Appellate Court states that the plain language of the statute mandates that the limitations period for an action for childhood sexual abuse begins to run only when the person discovers, or should have reasonably discovered, that she was the victim of childhood sexual abuse. The Court also recognized that a plaintiff in a childhood sexual abuse case may subsequently suffer from repressed memory, a condition or disability that renders her unable to recognize that the event occurred or that she suffered a resulting injury. Without specifically considering whether repressed memory represents a valid claim, the Court stated that it is compelled to agree with other courts that recognize it, "in instances where the plaintiff is suffering from a recognized and accepted condition or disability which prevents knowledge of the sexual abuse, section 13-202.2 of the Code may apply to toll the applicable limitations period." The Court stated that the second requirement is whether the plaintiff's actions are timely filed. The Court noted that section 13-202.2(d) of the Code of Civil Procedure is a codification of the judicially created "discovery rule." The discovery rule as developed by common law requires both knowledge of the injury and its wrongful cause before the statute of limitations begins to run. In Clay, the Court noted that the plaintiff did not file her complaint within two years of reaching age 18. The plaintiff was 28 years old at the time she filed her complaint, and alleged that she "had no memory of the molestation at any time during her majority until February of 1995." The Court found that her allegation was ambiguous and insufficient to toll the statute of limitations under section 13-202.2 and noted that, where the discovery rule has applied, the plaintiff had provided a well articulated explanation of why it was impossible to discover her injury sooner. The Court concluded that "as a matter of law mere forgetfulness cannot constitute a sufficient ground to toll the statute. To hold otherwise would defeat the purpose of the statute which is to require prosecution of a right of action within a reasonable time to prevent the loss or impairment of available evidence and to discourage delay in the bringing of claims." The Court argued that if the plaintiff intends to rely on the psychological condition of "repressed memory" in order to toll the statute of limitations, then the plaintiff is obligated to plead the condition with sufficient specificity to advise the defendant of the alleged basis on which section 13-202.2 applies.