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DOE v. BOY SCOUTS OF AMERICA CORP.—FIRST CONCURRENCE

AND DISSENT

ZARELLA, J., with whom ESPINOSAandROBINSON,

Js., join, concurring in part and dissenting in part.I agree

with and join parts I and VI1 of the majority opinion2 and

agree with the majority’s determination not to reach the

issue of whether the award of damages was excessive. I

express no opinion with respect to parts II, III and IV

of the majority opinion.3I write separately because I

disagree with the majority’s conclusion in part V of its

opinion that the thirty year limitation period prescribed

by General Statutes § 52-577d applies to an action that

sounds in negligence and recklessness.

The plain language of § 52-577d compels the conclusion that it applies only when an action is premised on

intentional misconduct. In a case alleging negligence

or recklessness, such as the present case, the two year

limitation period in General Statutes § 52-5844 applies.

Not only does the plain language of § 52-577d support

this construction, but the statutory scheme pertaining

to statutes of limitations, the relevant legislative history,

and case law from other jurisdictions also indicate that

§ 52-577d does not apply to actions alleging negligence

orrecklessness. I would thus conclude that, because the

two year limitation period set forth in § 52-584 expired

before the plaintiff commenced the present action, the

matter is time barred.5

Section 52-577d provides in relevant part: ‘‘Notwithstanding the provisions of section 52-577, no action to

recover damages for personal injury to a minor, including emotional distress, caused by sexual abuse . . .

may be brought by such person later than thirty years

from the date such person attains the age of majority.’’

The majority acknowledges that ‘‘§ 52-577d expressly

provides that [General Statutes] § 52-577, which applies

to intentional torts, does not apply to claims involving

personal injury to a minor caused by sexual abuse,

[whereas] § 52-577d makes no mention of § 52-584,

which applies to claims of personal injury arising from

negligence or recklessness . . . .’’ Text accompanying

footnote 20 of the majority opinion. The majority concludes, however, that the omission of § 52-584 ‘‘tends

to create some ambiguity concerning the statute’s scope

. . . .’’ (Internal quotation marks omitted.) Part V of

the majority opinion, quoting Doe v. Indian Mountain

School, Inc., 921 F. Supp. 82, 83 (D. Conn. 1995). In my

view, the legislature’s deliberate omission of § 52-584

demonstrates its intent to specify that § 52-577d applies

to intentional conduct only. The plain language indicates that the legislature recognized a conflict between

§§ 52-577 and 52-577d, making it necessary to clarify

that an action for injuries caused by sexual abuse is

subject to the thirty year statute of limitations in § 52-
577d. Perceiving no conflict between §§ 52-584 and 52-

577d, however, the legislature saw no need to mention

§ 52-584. In other words, because § 52-577d applies to

intentional conduct only, it would have been redundant

to clarify that it does not apply to claims alleging negligence or recklessness. If the legislature had intended

forthese claims to be subject to § 52-577d, it would have

provided, ‘‘[n]otwithstanding the provisions of sections

52-577 and 52-584’’ in § 52-577d. The fact that § 52-577

is a ‘‘catchall’’ provision that applies to intentional torts

and other torts not specifically mentioned in other statutes does not negate the fact that the legislature, in

drafting § 52-577d, perceived and resolved a conflict

between §§ 52-577 and 52-577d, and perceived no such

conflict between §§ 52-577d and 52-584.

Despite the deliberate omission of any reference to

§ 52-584 in § 52-577d, the majority concludes that negligence and recklessness claims are subject to the thirty

year statute of limitations because ‘‘[t]he all-encompassing language of § 52-577d providing that ‘no action

to recover damages for personal injury to a minor . . .

caused by sexual abuse’ . . . supports an interpretation that negligence and recklessness claims would also

be subject to the thirty year statute of limitations.’’

(Emphasis in original.) Part V of the majority opinion.

The only way to arrive at this conclusion, however, is

to disregard entirely the phrase ‘‘[n]otwithstanding the

provisions of § 52-577’’ in § 52-577d. Moreover, this conclusion creates a conflict between §§ 52-577d and 52-

584, when no such conflict exists under the plain statutory language. When § 52-577d is construed as written,

it applies only when an action is predicated on conduct

that amounts to sexual abuse, sexual assault or sexual

exploitation, all of which require intentional conduct.

Under this straightforward approach, there is no conflict with § 52-584, which applies only when an action is

predicated on negligent or reckless conduct. Moreover,

this approach is consistent with our long-standing history of construing statutes to avoid conflict when possible. E.g., Tomlinson v. Tomlinson, 305 Conn. 539, 552,

46 A.3d 112 (2012). The majority’s contrary approach

not only ignores the legislature’s resolution of the conflict between §§ 52-577d and 52-577, but creates a conflict between §§ 52-577d and 52-584 where the legislature saw none.

Additional language in § 52-577d compels the conclusion that it does not apply to actions sounding in negligence or recklessness. Section 52-577d provides that it

applies to actions for damages ‘‘caused by’’ sexual abuse

or sexual assault. The use of the narrow phrase ‘‘caused

by,’’ rather than more expansive language, indicates

that § 52-577d applies only when the action arises from

the perpetrator’s intentional act that caused the sexual

abuse. See State ex rel. Heart of America Council v.

McKenzie, 484 S.W.3d 320, 327 (Mo. 2016) (construing

statute of limitations for ‘‘ ‘any action to recover dam-
ages from injury . . . caused by childhood sexual

abuse’ ’’ and rejecting argument that, because statute

did not expressly exclude claims against nonperpetrators, such claims could be brought); see also Walker v.

Barrett, 650 F.3d 1198, 1209 (8th Cir. 2011) (rejecting

argument that claim could be brought against nonperpetrator when statute of limitations governing ‘‘ ‘[a]ny

action to recover damages from injury . . . caused by

childhood sexual abuse,’ ’’ by its terms, suggested that

nonperpetrator could not be held liable).

The majority offers no explanation for how the phrase

‘‘caused by’’ includes negligent or reckless conduct but

concludes instead that, ‘‘[i]f the legislature had intended

to limit the application of § 52-577d to claims against

perpetrators . . . it could have simply said so.’’ Text

accompanying footnote 21 of the majority opinion. In

my view, the legislature did say so by indicating that

§ 52-577d applies to injuries ‘‘caused by’’ sexual assault

and by expressly incorporating a reference to § 52-577

while omitting any reference to § 52-584. Moreover, one

can argue just as easily that, if the legislature had

intended to extend the application of § 52-577d to nonperpetrators, it could have said so. Finally, I am not

persuaded by the majority’s conclusion that § 52-577d

must apply to negligent and reckless conduct because

it applies to tort claims for emotional distress. Because

such emotional distress claims can be premised on

intentional conduct or negligent conduct, a commonsense reading of § 52-577d suggests that it applies to

claims for emotional distress premised on intentional

conduct but does not apply to claims premised on negligent conduct.

Not only does the plain language of § 52-577d compel

the conclusion that it applies only to actions premised

on intentional conduct, but this conclusion is also consistent with the statutory framework pertaining to statutes of limitations set forth in chapter 926 of the General

Statutes. This chapter, which establishes limitation periods for various types of actions, contains separate provisions for actions premised on intentional torts and

all torts not specifically mentioned in other statutes;

see General Statutes § 52-577; see also Collens v. New

Canaan Water Co., 155 Conn. 477, 491, 234 A.2d 825

(1967); actions premised on specific intentional torts;

see, e.g., General Statutes §§ 52-577b and 52-577c; and

actions premised on negligence or recklessness. See

General Statutes § 52-584. It is well established that

‘‘[t]he enactment of [s]tatutes limiting the time within

which an action may be brought are the result of a

legitimate legislative determination which balances the

rights and duties of competing groups.’’ (Internal quotation marks omitted.) St. Paul Travelers Co. v. Kuehl,

299 Conn. 800, 809, 12 A.3d 852 (2011). The legislature,

recognizing the distinctions between intentional torts

in general, specific intentional torts, and acts of negligence or recklessness, set different time periods for
each type of action. Thus, under § 52-577, a plaintiff

injured as a result of an intentional tort has three years

from the date of the act or omission to commence an

action, whereas, under § 52-584, a plaintiff injured by

negligent or reckless conduct must bring the action

within two years of the date when the injury is first

sustained or discovered. Under General Statutes § 52-

577e, there is no limitation on bringing an action when

an injury has been caused by sexual assault and the

party legally at fault for the injury has been convicted

of sexual assault. When we consider § 52-577d in the

context of this scheme, as mandated by General Statutes § 1-2z, it becomes clear that the thirty year limitation period in § 52-577d applies only to intentional

conduct. To interpret the provision to apply to both

intentional and negligent conduct frustrates the legislature’s distinctive treatment of intentional, reckless and

negligent conduct, and contravenes our mandate to

interpret statutes to avoid, rather than to create, conflict.

The legislative history also supports the conclusion

that § 52-577d does not apply to actions sounding in

negligence. The majority observes that the legislation

was intended ‘‘to afford a plaintiff sufficient time to

recall and come to terms with traumatic childhood

events before he or she must take action . . . .’’ (Internal quotation marks omitted.) Part V of the majority

opinion, quoting Roberts v. Caton, 224 Conn. 483, 493,

619 A.2d 844 (1993). Although I agree with this sentiment, it does not establish that the legislature intended

for § 52-577d to apply to nonperpetrators. In fact, as

the defendant emphasizes in its brief, a key focus of

statutory debate was on the perpetrator of the sexual

abuse. Representative Richard D. Tulisano, introducing

the legislation on the floor of the House of Representatives, explained that it was intended to toll the statute

of limitations so that ‘‘a minor who has been victimized

by sexual assault could bring an action against the

offender—a civil action against the offender.’’ (Emphasis added.) 29 H.R. Proc., Pt. 12, 1986 Sess., p. 4388.

After Representative Tulisano explained that ‘‘[m]ost of

these incidents occur with caretakers, that is a parent,

stepparent, uncles, individuals with whom they’ve been,

boyfriends of their mothers . . . [a]nd generally it

begins to occur . . . in the teen years’’; 29 H.R. Proc.,

Pt. 17, 1986 Sess., p. 6328; Representative William L.

Wollenberg expressed his concern that victims would

‘‘go to an attorney and . . . file a civil suit against this

parent or against the uncle or against the caretaker.

. . . They may get a judgment . . . [but] it probably

would be an empty judgment.’’ Id., p. 6337. These

remarks establish that the context for the debate was

whether the legislation made sense when victims might

stand to recover little from perpetrators.

Representative Michael D. Rybak firstraised the issue

of whether the proposed legislation would apply to a
nonperpetrator by asking whether passage of an amendment to the proposed legislation would mean that, if

an employee of a day care center committed a sexual

assault, ‘‘[d]oes [liability] fall on the employee, or does

it fall back on the day care center?’’ Id., p. 6356. In

response, Representative Tulisano responded: ‘‘I suppose it’s the institution that maintains its liability, and

the individual would be liable for the incident, the individual who caused the act to occur.’’ Id. Representative

Tulisano then further explained: ‘‘[T]his is [wilful] and

wanton. It’s an intentional act that we’re talking about

here under this particular proposal. So the individual

would in fact be responsible personally. The day care

center, I suppose as an institution may continue to have

liability, but [its] policy probably will exclude [wilful]

and [wanton] acts anyway, so as an institution, [it] will

not be liable. And of course, the boards of directors

are already protected . . . so it really lies on the person

who did the act for the most part, the offender.’’ Id., p.

6357. This exchange supports two conclusions. First,

it indicates that the proposal’s sponsors had not really

contemplated whether the proposed legislation would

apply to anyone other than offenders. Second, it indicates that the legislators’ underlying assumption was

that the proposal applied to offenders only. This

exchange simply cannot be interpreted to support a

determination that the legislature intended for § 52-

577d to apply to nonperpetrators.

Moreover, when the time frame in § 52-577d was

amended further by No. 91-240 of the 1991 Public Acts,

Representative Tulisano again introduced the legislation by explaining that ‘‘[a] number of years ago Connecticut was among the first states to recognize that

minor victims of sexual assault often do not have the

independence and the opportunity to bring civil actions

against the perpetrators of crimes against them and at

that time Connecticut, in the beginning, enacted its

current statute, one of the first in the nation, and the

purpose of it is to give individuals an opportunity to

do something for themselves.’’ (Emphasis added.) 34

H.R. Proc., Pt. 13, 1991 Sess., p. 4705. The legislative

debates establish the legislature’s intent to provide sexual assault victims additional time to recall and take

action against the perpetrators of sexual abuse. There

is nothing in the legislative history, however, to indicate

that the proposal would also apply to nonperpetrators.

Turning to the case law, I am not persuaded by the

majority’s reliance on nonbinding authority from other

jurisdictions as a central factorin construing a Connecticut statute. In particular, the majority relies on Almonte

v. New York Medical College, 851 F. Supp. 34 (D. Conn.

1994), in which the United States District Court for the

District of Connecticut, after acknowledging that the

Connecticut Supreme Court had never decided whether

§ 52-577d applies to a claim sounding in negligence; see

id., 37; concluded that § 52-577d, rather than § 52-584,
applied in a negligence action. Id., 39. Not only does

the District Court’s decision to decide a question of

Connecticut law contravene our long-standing procedure for encouraging federal courts to certify questions

of law to the Connecticut Supreme Court for decision;

see Practice Book (1978–1997) § 4168; but it effectively

forestalls our independent consideration of the matter.

Although the analysis in Almonte was not binding precedent in Connecticut state courts, it became the foundation for nearly all of the subsequent trial court decisions

on this issue and has now become the foundation for

the present decision. See footnote 24 of the majority

opinion (citing cases); cf. Doe v. Flanigan, Superior

Court, judicial district of Waterbury, Docket No. UWYCV-09-501462-S (January 9, 2015)(59 Conn. L. Rptr. 586)

(engaging in little analysis); Truex v. Rogers, Superior

Court, judicial district of Hartford, Docket No. CV-04-

0833129-S (May 10, 2006)(41Conn. L. Rptr. 330)(relying

on See v. Bridgeport Roman Catholic Diocesan Corp.,

Superior Court, judicial district of Fairfield, Docket No.

CV-93-0300948-S [September 13, 1993] [10 Conn. L. Rptr.

51]). In my view, the routine reliance on Almonte undercuts the persuasive value of the majority’s contention

that, ‘‘over the last twenty-two years, there have been

numerous decisions in Connecticut courts holding that

negligence claims against nonperpetrators were subject

to the extended statute of limitations contained in § 52-

577d.’’6 Text accompanying footnote 24 of the majority opinion.

Most important, I do not find the reasoning in

Almonte persuasive. The District Court takes no notice

of the legislature’s statement that § 52-577d applies in

place of § 52-577 and fails to consider § 52-577d in the

context of related statutes, such as § 52-577e. I also

disagree with the District Court’s conclusion that,

because § 52-577d is focused on providing victims with

a recovery for a particular type of harm and is not

expressly limited to actions brought against perpetrators, it applies in negligence actions against nonperpetrators. See Almonte v. New York Medical College,

supra, 851 F. Supp. 37–39. The fact that § 52-577d serves

to allow recovery for victims of sexual abuse does not

mean that § 52-577d is intended to permitrecovery from

nonperpetrators. In fact, there is no indication in the

statutory language or the legislative history that § 52-

577d was intended to permit recovery from a person

who did not engage in an intentional act and did not

cause the sexual abuse.

Finally, although the majority refers to additional

cases from other jurisdictions; see footnote 21 of the

majority opinion; these cases offer little guidance to

this court because they construe statutes that contain

distinct wording and contexts. To the extent that these

cases offer guidance in assessing the meaning of § 52-

577d in the context of our unique statutory scheme; see

General Statutes § 1-2z; they merely indicate that courts
of other jurisdictions have taken different approaches

in interpreting similar provisions. As the majority

acknowledges, a number of courts have interpreted

statutes similar to § 52-577d to apply only to individuals

who perpetrated the sexual abuse or sexual assault.7

I

am not persuaded by the majority’s attempt to distinguish these cases on the ground that the statutes at

issue incorporated a definition of sexual assault that

referred to intentional conduct committed by the perpetrator or included language concerning conduct committed by the perpetrator. See footnote 21 of the

majority opinion. As I discussed previously in this opinion, § 52-577d limits its application to intentional conduct by expressly providing that it applies in place of

the intentional tort limitation provision of § 52-577, and

not in place of the negligence or recklessness limitation

provision of § 52-584. Moreover, to the extent that the

cases in other jurisdictions have addressed a definition

of abuse that requires intentional behavior, General

Statutes § 46b-120 (7) provides in relevant part that ‘‘[a]

child or youth may be found ‘abused’ who (A) has been

inflicted with physical injury or injuries other than by

accidental means . . . .’’

Following a careful review of the plain language of

§ 52-577d, the statutory framework, the legislative history and relevant case law, I would conclude that § 52-

577d does not apply to actions sounding in negligence

or recklessness and does not apply in an action against

entities or individuals who did not commit the sexual

assault. I would therefore conclude that the plaintiff’s

action is time barred by § 52-584 because it was commenced more than two years after the plaintiff’s injury

was first sustained or discovered.

1 Specifically, I agree that the trial court (1) improperly denied the request

of the named defendant, The Boy Scouts of America Corporation, to charge

the jury that it could not be held liable for negligence unless the plaintiff,

John Doe, proved that the defendant’s conduct created or increased the

risk that the plaintiff would be harmed by Siegfried Hepp, and (2) incorrectly

determined that the statute of limitations set forth in General Statutes § 52-

577d applied to the plaintiff’s claim brought pursuant to the Connecticut

Unfair Trade Practices Act, General Statutes § 42-110a et seq.

2 Chief Justice Rogers’ opinion, which is joined by Judge Sheldon, is

technically not a majority opinion but, rather, an opinion announcing the

judgment. In the interest of simplicity, we referto that opinion as the majority

opinion and to Chief Justice Rogers and Judge Sheldon collectively as

the majority.

3

I express no opinion with respect to whether (1) the named defendant,

The Boy Scouts of America Corporation, had a duty to protect the plaintiff,

John Doe, from Siegfried Hepp’s criminal or intentional misconduct, (2)

the plaintiff presented insufficient evidence to support a finding that the

defendant’s conduct had caused the plaintiff’s injuries, and (3) the plaintiff

presented insufficient evidence to support a finding that the defendant had

been reckless.

4 See part V of the majority opinion for the text of § 52-584.

5 Based on this conclusion, Justice Espinosa, Justice Robinson and I would

reverse the trial court’s judgment and remand the case with direction to

render judgment for the named defendant, The Boy Scouts of America

Corporation. The justices in the majority opinion and the other concurrence

and dissent, however, have reached divergent conclusions about the correct

disposition of the case. Chief Justice Rogers and Judge Sheldon, who comprise the majority opinion, would reverse the trial court’s judgment and

remand the case for a new trial. Justices Eveleigh and McDonald, who
comprise the other concurrence and dissent, would affirm the trial court’s

judgment. If we were to adhere to our respective positions, there would be

no controlling judgment from this court. In these circumstances, and given

that a majority of the justices of the court have disagreed with the position

that Justice Espinosa, Justice Robinson and I have taken with respect to the

statute of limitations issue, we have considered the merits of the defendant’s

instructional error claim and agree with and join part I of the majority

opinion. We therefore agree that the judgment of the trial court must be

reversed and the case remanded for a new trial.

6 Two Superior Court cases addressed this issue before Almonte was

decided in 1994. See v. Bridgeport Roman Catholic Diocesan Corp., supra,

10 Conn. L. Rptr. 51 (indicating that § 52-577d applies to perpetrators and

nonperpetrators); Ashlaw v. Booth, Superior Court, judicial district of Windham, Docket No. CV-90-0045313-S (August 9, 1994) (§ 52-584, not § 52-577d,

applied in negligence action against nonperpetrator).

7 See, e.g., Walker v. Barrett, supra, 650 F.3d 1209 (‘‘[a]ny action to recover

damages from injury . . . caused by childhood sexual abuse’’ [internal quotation marks omitted]); Debbie Reynolds Professional Rehearsal Studios v.

Superior Court, 25 Cal. App. 4th 222, 230 n.3, 30 Cal. Rptr. 2d 514 (1994)

(‘‘any civil action for recovery of damages suffered as a result of childhood

sexual abuse’’ [internal quotation marks omitted]); Sandoval v. Archdiocese,

8 P.3d 598, 600 (Colo. App. 2000) (‘‘any civil action based on . . . a sexual

offense against a child’’ [internal quotation marks omitted]); Knaus v. Great

Crossings Baptist Church, Inc., Kentucky Court of Appeals, Docket No.

2009-CA-000141-MR (February 12, 2010) (‘‘[a]ction relating to childhood

sexual abuse or childhood sexual assault’’ [internal quotation marks omitted]), review denied, Kentucky Supreme Court (October 13, 2010); State ex

rel. Heart of America Council v. McKenzie, supra, 484 S.W.3d 327 (‘‘any

action to recover damages from injury . . . caused by childhood sexual

abuse’’ [internal quotation marks omitted]); Kelly v. Marcantonio, 678 A.2d

873, 875 (R.I. 1996) (‘‘[an] action based on intentional conduct brought by

any person for recovery of damages for injury suffered as a result of childhood sexual abuse’’ [internal quotation marks omitted]); Bernie v. Blue

Cloud Abbey, 821 N.W.2d 224, 226 (S.D. 2012) (‘‘[a]ny civil action based on

intentional conduct brought by any person for recovery of damages for

injury suffered as a result of childhood sexual abuse’’ [internal quotation

marks omitted]).