Child Molesting|Civil Statute of Limitations Indiana

Child Molesting|Civil Statute of Limitations Indiana

INDIANA STATUTE OF LIMITATIONS IN CIVIL ACTIONS FOR MOLESTATIONS

A caveat: If you think you have a civil case, do not merely rely upon this article. Consult with an attorney. This is especially true if your facts took place in another state. This is general legal information specific to the state of Indiana. Your attorney is the one who would have to determine whether or not you have a viable legal case.

Indiana law imposes a 2 year statute of limitations on torts, to wit, actions in which a person suffers some injury caused by another person. Indiana Code § 34-11-2-4. If the harm occurs to a person who is under a “legal disability,” such as being less than 18 years of age,  Ind.Code § 1-1-4-5(24), then the statute of limitations runs two years after that person’s 18th birthday. That is the law.

General Rule of Discovery in Indiana.

The case law clearly recognizes that a tort claim accrues and the statute of limitations thus begins to run when a plaintiff knew or, in the exercise of ordinary diligence, should have discovered that an injury had been sustained as a result of the tortious act of another person. Thus, a child will be “presumed” to have known he or she was molested at the age of eighteen–though this is a “rebuttable” presumption.

Exceptions to the Rulelegal_trouble_400_clr

The statute of limitations is tolled (that is, stopped from running) under certain exceptions. Under one rule of law, while the statute is not tolled, the Courts will apply equitable relief from the tolling of the statute where it finds there is “fraudulent concealment.”

Knowing whether the statute is tolled turns on the facts of the case. It is impossible to know whether a case has no civil merit without knowing certain facts.  I’ll try and give you here, some of the factors that the courts look at when deciding these kinds of cases.

Repressed Memory.

The law in Indiana holds that anyone who claims a repressed memory, must, at trial, demonstrate that he or she had a repressed memory of the event(s) such that it prevented him or her from filing their claim within the statutory period of time, to wit, within 2 years of the statute of limitations.

Any plaintiff absolutely must present expert testimony at trial to use this exception. While one may escape summary judgment (a dismissal of the case based on a motion alleging there is no evidence to support the exception), at trial, the Plaintiff’s case  will be dismissed if he or she does not have an expert witness to testify in support of the claim of a repressed memory. It is not sufficient to merely claim there was no memory of it until recently (when “recently” is beyond the statute of limitations).

Fraudulent Concealment

The courts in Indiana have held that due to the natural and legal obligations of parents, the “discovery” of a cause of action by a child’s parent, even if there is no “actual cognition or memory” by the child, shall be imputed to the child. The imputation shall constitute the accrual of an action within  Ind.Code § 34-1-2-5, as to the “disability” of a child. In other words,  where the parent has knowledge of a matter, the child is presumed (legally) to have knowledge of a matter, thus only allowing the minor two years after reaching majority within which to commence suit.

Now, where a parent is the abuser, the imputation rule is not so strict and the courts will not allow a parent who is an intentional abuser of a child to benefit from the rule. The courts will not presume that such a parent informed a child of what it deems “significant childhood events,” and instead will permit the child to assert the doctrine of “fraudulent concealment” to keep the offender parent from asserting a defense of the statute of limitations, where he has, either from deception, or a violation of duty ( to inform the child of “material facts,” to wit, the significance of his actions), which action(s) prevented the child from filing a cause of action.

The Indiana Supreme Court, many years ago, articulated this exception and held it was (and still is) the law in the state of Indiana:

“Where equity, because of fraud, previously granted an injunction against the use of the statute of limitations in a law action, it raised an estoppel as a bar. This was based on the principle that one who practices deceit or fraud, and conceals material facts and thereby prevents the discovery of the wrong, should not be permitted to take advantage of his own deceit or concealment by asserting the statute of limitations. While a wrongdoer is concealing from an injured person his wrongful act, the law will not, through a statute of limitations, strip the injured party of his remedy against the wrongdoer.” Guy v. Schuldt, 138 N.E.2d 891, 893, (Ind. 1956).

The question, in these cases, is going to be whether the Plaintiff filed his or her case within a “reasonable time” following the discovery of the harm. The statute of limitations is not reset. In other words, the Plaintiff does not have 2 more years. The law deems this to be an “equitable exception” to the statute of limitations. It isn’t tolled. It isn’t reset. A Plaintiff must act quickly because once the court accepts a “fraudulent concealment” exception, they will find that equitable grounds cease when that person, as an adult, knows or should have discovered that a “childhood injury” was sustained as a result of a defendant’s unlawful actions.

As one court put it:

“For a plaintiff to benefit therefrom, the plaintiff must exercise due diligence in the filing of an action after the equitable grounds cease to operate as a valid basis for inducing the plaintiff’s delay.” Spoljaric v. Pangan (1984), Ind.App., 466 N.E.2d 37, 45 (Ind. App. 1984).

Someone who has been injured by a molestation or a rape or any other injury which has been “concealed” from them by the perpetrator, or could not be reasonably known, must act upon that claim by filing suit very soon after learning of the harm. Understand that the word “concealed” is a legal term and has to do with the defendant concealing the wrong he did to the victim from not just others, but to the authorities and to the victim. A child will not understand the significance, certainly not the criminal significance, nor the harm done to him or her at the time.

It will be a matter for the court to decide as to whether a civil complaint was timely or not. I’d strongly suggest that if you wait more than a year, a court would very likely bar the claim, absent some very compelling reason(s) why you failed to file quicker than that. Now, do not interpret that to mean you have up to a year. In some instances, it could be that a delay of just a few months could create enough for a court to deny the claim. There is no bright line period of time when you’re running under a fraudulent concealment exception.

Bottom line: If you have a civil case, file it ASAP.

MOVEMENT TO DO AWAY WITH STATUTE OF LIMITATIONS FOR CHILD MOLESTING

Note:  In 2013-14 a movement was begun which is attempting to change the law with respect to certain crimes, particularly sexual abuse crimes against children. The effort is to do away with the Statute of Limitations for these kinds of crimes. In other words, it would be the same as if you murdered someone. There is no statute of limitations on murder. The argument is made by many that some of these crimes (of sexual abuse of a child) are really that: murder. They often murder that child’s future, murder that child spiritually, and murder the child emotionally. If you agree with doing away with the statute of limitations, there is a petition that you can sign. (Click PETITION)

Copyright 2014 Voyle A. Glover

RESOURCES

http://www.in.gov/legislative/ic/code/title35/ar41/ch4.html

http://sol-reform.com/Indiana/

 http://bit.ly/1okACS8

 

 

 


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Real Estate and Mechanic Liens in Indiana

hold_up_800_clrNot too long ago, a client came to me in a panic. They were selling their home. Suddenly, they are served with a Notice of Intention to Hold a Mechanic’s Lien. There was an allegation of work and a claim for over $10,000.00. They had a buyer in the wings, ready to close. The lien was bogus. The man who filed the lien was trying to pick my clients’ pockets.

Indiana law can be quirky when it comes to Mechanic’s liens. Typically, if someone files a lien for work done on a property, it has to be filed within 60 days of the work performed. In this case, there had been no work performed in the 60 day period. However, once a lien is filed, the lienholder has up to one year to foreclose against his lien. After that, the lien disappears.

REMOVING A MECHANIC’S LIEN ON A PROPERTY

There is a way to shorten the process. What homeowner, especially one with a sale pending, wants a lien to be on his property for up to a year. That is sure to kill any sales. In this instance, I immediately took steps to protect my clients’ interests and to invoke a special procedure in the law that can shorten the time for foreclosure to 30 days.

Fortunately, all turned out well for the clients. The lien is removed. The clients sold their home.

A lien on a piece of real estate is not something to be taken lightly. Sometimes, you have to make some serious investigations as to the validity of the claim, and you need to make sure the claim falls within the parameters of Indiana law. Moreover, you need to insure that the paperwork was filed properly and complied with the notice requirements of the Mechanic’s Lien statute.

RESOURCES

http://www.in.gov/legislative/ic/code/title32/ar28/ch3.html

 http://www.in.gov/dfi/2485.htm

 http://www.kddk.com/navigating-the-complexities-of-indianas-mechanics-lien-statute/

 

 


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