ELIZABETH PERRIS, Bankruptcy Judge
This matter came before the bankruptcy court for a hearing on debtor's motion for summary judgment that Claim # 154 be disallowed because it is time-barred under ORS 12.117(1). The claim asserted is a personal injury claim, which the bankruptcy court cannot liquidate for purposes of distribution in a case under Title 11. 28 U.S.C. § 157(b)(2)(b); § 157(b)(5). Having read the submissions of the parties and heard the argument of counsel, I recommend to the United States District Court for the District of Oregon pursuant to 28 U.S.C. § 157(c)(1) that the motion be GRANTED and the claim DISALLOWED for the reasons discussed below.
BACKGROUND
Claimant has filed a claim (Claim #154) against debtor in this bankruptcy case, based on one incident that allegedly occurred involving Father Joseph Baccellieri ("Father B"), who was claimant's music teacher at Central Catholic High School in Portland. Harris Affidavit, Ex. 1, Deposition of Claimant at 70:5-6. The alleged incident occurred at a Lincoln City beach house during the summer of 1973, when claimant was either 16 or 17 years old. Harris Affidavit, Ex. 1, Deposition of Claimant at 80:17-20. Claimant and Father B have different recollections of what happened. Because the evidence on summary judgment is "viewed in the light most favorable to the non-moving party,"Horphag Research Ltd. v. Pellegrini, 337 F.3d 1036, 1040 (9th Cir. 2003), only the claimant's version of the story is recounted in this memorandum. Claimant alleges that upon arrival at the Lincoln City beach house, Father B served claimant alcohol. Harris Affidavit, Ex. 1, Deposition of Claimant at 84:9-11. Claimant fell asleep on the couch, and at around 3 a.m., awoke to find Father B, naked and masturbating in front of claimant. Harris Affidavit, Ex. 1, Deposition of Claimant at 85:1-6. At that point, claimant jumped up, grabbed his belongings, and left the house. Harris Affidavit, Ex.1, Deposition of Claimant at 85:15-25.
Claimant recalls that, after leaving the beach house, he hitchhiked back to Portland. Harris Affidavit, Ex. 1, Deposition of Claimant at 87:6. At around 6 a.m., he arrived at the house of a close friend in Portland, where he told his friend about the incident in detail. Harris Affidavit, Ex. 1, Deposition of Claimant at 87:2-88:13. After that, claimant would mention his version of the incident to "practically anybody that would listen" among his group of high school friends. Harris Affidavit, Ex. 1, Deposition of Claimant at 92:18. Claimant never told his parents or other Central Catholic teachers about the incident because "it's just a code. It's a kid code thing, you don't rat people out. It's just the unwritten law." Slader Declaration, Ex. 2, Deposition of Claimant at 97:15-23.
It is clear that claimant has never forgotten or repressed the memory of the incident. About 20 years ago (about the mid 1980's), claimant recalls a conversation with his brother in which Father B's name came up. Claimant told his brother at that time that "[Father B] is a freak." Slader Declaration, Ex. 2, Deposition of Claimant at 98:25. Then, in the early 1990's, claimant's friend was pursuing a sex abuse claim against Father B. Michael Morey, the friend's attorney, told claimant that he too had grounds to pursue a claim against Father B and the Archdiocese. Claimant's response at that time was that he did not want to pursue a claim because he had not been physically harmed, and that he didn't think he had a right to damages for what was just a "bad incident." Slader Declaration, Ex. 2, Deposition of Claimant at 115:11-18. Claimant even asserts, "I just kind of chalked it up, but I was happy to relate it if it was going to help the other guys who were sexually molested." Slader Declaration, Ex. 2, Deposition of Claimant at 115:18-21.
Later, after the Archdiocese had filed bankruptcy in 2004 and the issue of priest sex abuse "hit the papers again," claimant disclosed the facts of the beach house incident to his mother. Slader Declaration, Ex. 2, Deposition of Claimant at 116:1-6. His mother immediately understood and said "well, now I know why you're so anti-religion and anti-spiritual." Slader Declaration, Ex. 2, Deposition of Claimant at 116:6-8. Claimant asserts that it never occurred to him that the incident could have affected him until he had the dialog with his mother about the abuse, and therefore, claimant's own discovery of the causal connection between Father B's conduct and his injury did not occur until that time. Claimant's Memorandum in Opposition to Motion for Summary Judgment at 5:9-19.
LEGAL STANDARD
The court shall grant summary judgment on a claim "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c), made applicable to this contested matter by Fed.R.Bankr.P. 9014(c) and 7056.
Ordinarily, claims for personal injuries must be brought within two years. ORS 12.110(1). However, an extended statute of limitations is available in some circumstances under ORS 12.117, which "governs actions based on child abuse." For claims that fall under this statute, the claim
shall be commenced not more than six years after that person attains 18 years of age, or if the injured person has not discovered the injury or the causal connection between the injury and the child abuse, nor in the exercise of reasonable care should have discovered the injury or the causal connection between the injury and the child abuse,
not more than three years from the date the injured person discovers or in the exercise of reasonable care should have discovered the injury or the causal connection between the child abuse and the injury, whichever period is longer.
ORS 12.117(1) (emphasis supplied). This statute establishes a general rule that child abuse claims must be filed not more than six years after the plaintiff reaches 18 years of age. Jasmin v. Ross, 177 Or. App. 210, 214 (2001). The statute also establishes a different time limit for plaintiffs who qualify for a "delayed discovery" exception. Id. Plaintiffs qualify for the extended filing period if they do not discover the injury while under 18; alternatively, they qualify if, while under 18, they discovered the injury, but did not discover that the injury was caused by child abuse. Id. In either case, the extended time limit applies only if the non-discovery was reasonable. Id. If a plaintiff qualifies for the extended limitation period, he or she has three years to file from the time the plaintiff discovered or should have discovered the injury or the causal connection between the abuse and the injury. Id.
Although debtor initially sought summary judgment based on its assertion that the claim was not for "child abuse" as defined in ORS 12.117(2), it has withdrawn that portion of the motion for summary judgment. Supplemental Memorandum Regarding Summary Judgment Against Proof of Claim No. 154 at 1:17-20. Therefore, the only question to be answered on summary judgment is whether Claim #154 is time-barred under ORS 12.117(1).
DISCUSSION
Debtor filed bankruptcy on July 6, 2004. Claimant filed his claim against debtor on October 28, 2004, when claimant was 48 years old, after actual discovery of his injury and the causal connection between the child abuse and the injury. Claimant explained that he was telling his mother about the Father B incident for the first time, when he realized that the child abuse by Father B was the root of his "anti-spiritual" and "anti-religion" attitude and his inability to have a "close personal reliance on Jesus Christ and God and the Catholic church." Slader Declaration, Exhibit 2, Deposition of Claimant at 116:7-22.
Although claimant's actual discovery of his injury and the causal connection between the injury and the abuse happened recently, debtor argues that the claim is time-barred because claimant, "in the exercise of reasonable care, should have discovered the injury or the causal connection between the injury and the child abuse," in the early 1990's, when he spoke to attorney Michael Morey regarding the abuse by Father B. See ORS 12.117(1) (emphasis supplied).
The term "discovers or in the exercise of reasonable care should have discovered" is language frequently used in statutes of limitation. Such wording creates a "discovery rule," and in light of the similarities between statutes using this rule, it is helpful to look at constructions of the identically phrased discovery rule in other statutes to discern the meaning of ORS 12.117(1). Keller v. Armstrong World Industries, 197 Or. App. 450, 459-460 (2005), rev. granted 340 Or. 201 (2006).
In Gaston v. Parsons, 318 Or. 247 (1994), the Oregon Supreme Court analyzed ORS 12.110(4), the medical malpractice statute of limitations, which provided that the two-year statute of limitations begins to run "when the injury is first discovered or in the exercise of reasonable care should have been discovered."Gaston, 318 Or. at 251-252. Gaston explains that, under the discovery rule, the test for when the statute of limitations begins to run is an objective test, taking into account factors pertaining to the individual such as "the nature of the harm suffered, the nature of the medical procedure and other relevant circumstances." Id. at 256. "[T]he relevant inquiry is how a reasonable person of ordinary prudence would have acted in the same or similar situation." Id.
Although I stated at the hearing that I was inclined to hold that this test is subjective, upon further review, I find that a more accurate characterization is that the test is an objective test that considers the actual facts and circumstances of the injured plaintiff. The statute of limitations will run even if the injured plaintiff, a victim of child sex abuse, has not discovered his injury, if a reasonable victim in the exercise of reasonable care, given the facts and circumstances of the actual plaintiff victim, should have discovered the injury.
Debtor's argument that the court should use a purely objective "reasonable person" standard disregards the language used in the discovery rule statutes. The "reasonable person standard" is a legal concept that is distinct from the concept of "reasonable care" under the discovery rule. The reasonable person standard is a uniform standard of conduct demanded of a defendant by the community, and is used in determining whether a defendant is negligent. See Prosser and Keeton on Torts § 32 (W. Page Keeton et al. eds., 5th Ed. 1984). In contrast, the focus under the discovery rule is when an injured plaintiff "discovers or in the exercise of reasonable care should have discovered" an injury caused by a defendant.
My reading of Gaston is that the test is objective only in that it does not take into consideration the actual knowledge of the plaintiff when determining what a plaintiff should have known in the exercise of reasonable care. Gaston specifically requires the court to take into consideration "the nature of the harm suffered, the nature of the medical procedure, and other relevant circumstances" of the injured plaintiff. Gaston, 318 Or. at 256. That standard contemplates that the court's analysis will begin with a similarly injured person in similar circumstances.
Thus, for the purposes of our analysis, the question is when should the claimant have discovered that he was injured by Father B's conduct had he exercised reasonable care, given the facts and circumstances of this particular claimant.
1. Claimant, in the exercise of reasonable care, should have discovered the injury in the early 1990's.
Debtor argues that claimant failed to exercise reasonable care in discerning the connection between his injury and the alleged abuse. Debtor's Memorandum in Support of Summary Judgment with Respect to Proof of Claim No. 154 at 7:14-16. Debtor asserts that, had claimant exercised reasonable care, he would have been put on notice during the early 1990's of the substantial possibility that he had been injured, when Mr. Morey told claimant that he had grounds to file a claim against Father B. Debtor's Memorandum in Support of Summary Judgment with Respect to Proof of Claim No. 154 at 8:15-16.
I agree with debtor. Mr. Morey informed claimant that he had a claim in the early 1990's. The exercise of reasonable care would dictate that, when an attorney tells a person that the person is entitled to damages for the abuse, it would be prudent to make an inquiry as to how the abuse has affected the person. A person in claimant's situation exercising reasonable care would have discussed the matter with trusted advisors, such as parents or a spouse. Instead, claimant did nothing to investigate whether he had been damaged after being advised of his potential claim.
a. Oral Argument by Claimant's Counsel
At the hearing on this motion, counsel for claimant argued that claimant was unable to make self inquiry at the time he was told by Mr. Morey that he had a sex abuse claim against the Archdiocese and Father B. Counsel argued that,
in [claimant's] own mind, he wasn't injured. . . . He had no concept that he was injured. . . . There was no place for him to go, to make inquiry except inside himself. And the abuse by itself, by its nature, disables insight.
May 15, 2006 hearing on Motion for Summary Judgment regarding Claim #154. Counsel argued further that, "to him [discovery] was impossible, until someone pointed it out to him. And made what was . . . opaque to him, but could be transparent to someone else who had not gone through the same experience." May 15, 2006 hearing on Motion for Summary Judgment regarding Claim #154. Claimant's counsel explained that claimant was only able to discover his injury after his mother pointed it out to him.
There are three problems with this argument. First, as a practical matter, claimant's injury was transparent to Mr. Morey, who pointed out to claimant that he had a claim against the Archdiocese and that he had been harmed by Father B's conduct. Even if Mr. Morey did not know specifically how claimant had been injured, based on his expertise as a plaintiff's attorney, he felt that, under the circumstances, claimant would be entitled to damages. Reasonable care required the claimant to have made a self-inquiry at that time, which the claimant did not do. Counsel's argument does not explain why claimant was unable to discern the injury when Mr. Morey pointed it out to him, but that he was able to discover the injury when his mother pointed it out to him several years later.
Second, counsel's argument is not evidence. Although it is undisputed that claimant did not actually discover his injury until 2004, there is no evidence in the record that supports counsel's assertions that claimant was completely unable to make a self-inquiry, and there is little or no evidence in the record that claimant exercised reasonable care after discussing the incident with Mr. Morey during the early 1990's.
Third, the argument is internally inconsistent. On the one hand, claimant's counsel argues that there was no place for claimant to inquire "except inside himself." On the other hand, he argues that claimant did not discover and could not have discovered his injury until his mother pointed it out. Thus, it was a third person, not self-inquiry, that was the key to claimant's discovery of his injury. Claimant could have discussed the situation with his mother in the early 1990's, rather than waiting until some time in 2004.
b. This case is distinguishable from Jasmin
Under certain circumstances, delayed discovery of injuries resulting from child sex abuse could be considered reasonable. InJasmin v. Ross, 177 Or. App. 210 (2001), the Oregon Court of Appeals analyzed "reasonable care" under the discovery rule in ORS 12.117(1) and concluded that the plaintiff's failure to realize the causal connection between the sex abuse and injury was not due to lack of reasonable care. InJasmin, the plaintiff was a woman who had been sexually abused by her uncle between the ages of 10 and 17. Although she knew all along that she had been abused as a child, she did not make the causal connection between her then-present emotional problems and the child abuse for many years. As a result, she did not file a claim against her uncle until she was 30 years old. The Oregon Court of Appeals held that there was "sufficient evidence from which a jury could find that delayed discovery was reasonable."Jasmin, 177 Or. App. at 217. The court took into consideration evidence that the plaintiff had post-traumatic stress disorder ("PTSD"), the fact that she "refused to consider the relationship with her stepuncle as abusive or as the cause of her [mental health problems] and that such a reaction is common among adult survivors of child abuse." Id. The court also took into consideration the plaintiff's psychological problems related to the PTSD, including diagnoses of depression, alcohol abuse, anger outbursts, and other mental health problems. Id. The court concluded that these medical conditions prevented plaintiff from becoming aware of the link between her injuries and the child abuse that she endured. Id.
The evidence considered by the Oregon Court of Appeals inJasmin was specific to the plaintiff in that case. In this case, however, claimant has not provided any evidence that is specific to him that would show that, like the plaintiff inJasmin, he was somehow prevented by some medical or psychological condition from discovering his injury.
Claimant has provided some evidence from an expert stating as a general proposition that abuse victims often do not make the connection between the abuse and the injury, even when it may be apparent to others. Claimant's counsel submits the declaration of Jon R. Conte, Ph.D., an expert on childhood sex abuse and trauma. Dr. Conte states that "many people who suffer conditions such as [depression, drinking to excess, becoming enraged, troubles with authority] place erroneous causality on factors that are actually unrelated to the condition." Slader Declaration, Ex. 4, 5:13-14. For example, the depressed person may blame feelings on a lousy job, or an alcoholic may claim physical addiction, rather than recognizing that he has problems flowing from having being abused in childhood. Slader Declaration, Ex. 4 at 5:13-17.
The problem with this evidence is that, although it is generally applicable to victims of childhood sex abuse, it is not applicable to all victims of such abuse. Unlike the Jasmin plaintiff's PTSD evidence, Dr. Conte's declaration is not a specific diagnosis for this claimant.
2. The question of when a person reasonably should have known of the injury is not always one for the jury.
Claimant's counsel cites to a line of cases that hold that the question of when a person reasonably "should have known" of the causal connection between an injury and the tortfeasor's conduct is a question of fact for the jury. In Minisce v. Thompson, 149 Or. App. 746 (1997), the Oregon Court of Appeals held that the question of "whether [the injury] should have sufficiently alerted plaintiff to trigger discovery . . . is a quintessential jury question." Minisce, 149 Or. App. at 752. In Hoeck v. Schwabe Williamson Wyatt, 149 Or. App. 607 (1997), the court held that "precisely when a person reasonably should have known that the harm suffered was caused by another's negligence generally presents a question of fact." Hoeck, 149 Or. App. at 612.
However, a court may grant summary judgment "[w]here the record taken as a whole could not lead a rational trier of fact to find for the [claimant]." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). In this case, the evidence in the record would not support a finding by a rational jury that claimant acted with reasonable care. Therefore, summary judgment is appropriate.
CONCLUSION
I recommend that debtor's motion for summary judgment be GRANTED and that Claim # 154 be DISALLOWED, because it is time-barred under ORS 12.117(1). Claimant, in the exercise of reasonable care, should have discovered his injury and the causal connection between the injury and the abuse when it was pointed out to him by Mr. Morey in the early 1990's or shortly thereafter.