Hammerberg v. Boy Scouts of Am., Corp.

EDWIN L. HAMMERBERG v. BOY SCOUTS OF AMERICA, CORP. & others

Docket: CIVIL ACTION NO. 2012-2244C

Commonwealth of Massachusetts Superior Court

October 19, 2015

Dates: August 11, 2015

Present:

County: WORCESTER, ss.

Keywords: MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

The plaintiff, Edwin L. Hammerberg ("the plaintiff'), brings this action against Boy Scouts of America, Corp., Mohegan Council, Inc. ("Mohegan"), and Boy Scouts of America ("Boy Scouts") (collectively, "the defendants") alleging that he was sexually abused by his scoutmaster, Lawrence Wiles ("Wiles"). Now before the court is the defendants' Motion for Summary Judgment. For the following reasons, the defendants' motion is ALLOWED.

BACKGROUND

The following facts are the undisputed facts contained in the record, viewed in the light most favorable to the non-moving party. See United States Attorney Gen. v. Bailey, 386 Mass. 367, 371 (1982).

The Boy Scouts is a non-profit organization that was chartered by the United States Congress in 1916. This program provides a framework by which young males can participate in activities designed to teach patriotism, self-reliance, courage, and kindred values. In order to fulfill its congressional mandate, the Boy Scouts issues charters to councils, that consist of a group of volunteers who incorporate as a non-profit organization in their respective states. These councils support scouting at a local level. Mohegan is one such council. These councils then offer the Scouting program to existing chartered organizations, such as churches, schools, and more.

According to its charter, the purpose of the BSA is to "...promote, through organization, and cooperation with other agencies, the ability of boys to do for themselves and others, to train them in Scoutcraft, and to teach them patriotism, courage, self-reliance, and kindred virtues..."The BSA's by-laws state that "in achieving this purpose, emphasis shall be, placed upon its educational program and the oaths, promises, and codes of the Scouting program for character development, citizenship training, and mental and physical fitness." The Constitution of the Mohegan Council states that its purpose "is to promote, supervise and administer the educational and recreational program of the Boy Scouts of America for character development, citizenship training and physical fitness..."

Chartered organizations can organize a Scouting program by applying for a charter to authorize the use of the Scouting program in order to create a boy scout troop. After approval, the chartered organization forms a troop committee that is responsible for promoting the troop and recruiting participants. This committee usually consists of parents of joining members. The committee also selects the individual, or individuals, known as the scoutmaster, who will lead the troop.

The plaintiff joined Troop 99 located in Worcester, Massachusetts as a nine-year-old boy. The scoutmaster of Troop 99 was Wiles. As expected, the plaintiff became acquainted with Wiles through his participation in Troop 99. The plaintiff's mother encouraged further association with Wiles outside of scouting so that the plaintiff could have a male figure in his life.

After a period of time, approximately during the years 1961-1964, when the plaintiff was nine to twelve years old, Wiles made sexual advances towards the plaintiff. These advances occurred during non-scouting interactions. Wiles's sexual abuse of the plaintiff occurred primarily at a steam bathhouse located in Charlton, Massachusetts. Wiles took the plaintiff to this steam bathhouse on a weekly basis for approximately two years. This sexual abuse consisted of oral and/or anal sex. Wiles died on March 15, 1989, after serving as a scoutmaster for thirty years.

Later, sometime during the years of 2009-2011, the plaintiff developed severe anxiety when driving past a particular building in Charlton, Massachusetts. The plaintiff thereafter recalled that this building was the steam bathhouse where Wiles had sexually abused him. Prior to this, the plaintiff had no memory of the abuse.

A licensed psychiatrist, Dr. James A. Chu ("Dr. Chu"), submitted an affidavit to this court stating that sexually-abused victims commonly suffer from what is known as traumatic amnesia, where victims forget their traumatic experience, but recall it at a later date. Dr. Chu further opined to a reasonable degree of medical certainty that the plaintiff's symptoms are consistent with the symptoms of traumatic amnesia.^[2]

DISCUSSION

I. Standard of Review

Summary judgment is appropriate where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. See Mass. R. Civ. P. 56(c); Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991). A party seeking summary judgment may satisfy its burden of demonstrating the absence of triable issues of fact either by submitting affirmative evidence demonstrating an entitlement to relief, or the opposing party's lack of entitlement, or by demonstrating that the opposing party has no reasonable expectation of proving an essential element of their case. Flesner v. Technology Communications Corp., 410 Mass. 805, 809 (1991). Once the moving party establishes the absence of a triable issue, the non-moving party must respond by setting forth specific facts showing that there is a genuine issue for trial. Mass. R. Civ. P. 56(e); Kourouvacilis, 410 Mass. at 716. A party cannot defeat a motion for summary judgment by simply resting on his or her pleadings and making mere assertions of disputed facts. Lalonde v. Eissner, 405 Mass. 207, 209 (1989).

II. Analysis

The defendants move for summary judgment arguing that: (1) the plaintiff's claims are barred by the statute of limitations; (2) the defendants cannot be liable for the actions of local troops; (3) the defendants' liability, if any, must be limited to $20,000. The court will address each of these arguments in turn.

A. Statute of Limitations

The applicable statute of limitations, G. L. c. 260, § 2A, states, in pertinent part, that: "actions of tort . . . to recover for injuries . . . shall be commenced only three years next after the cause of action accrues." The general rule in tort actions is that a cause of action accrues when the plaintiff is injured. Riley v. Presnell, 409 Mass. 239, 243 (1991). Thus, the defendant argues that under this general rule, the plaintiff's claims have long since accrued.

The plaintiff, by contrast, rightly states that the accrual of his claim is governed by the so-called "discovery rule." Under the discovery rule, a cause of action for an inherently unknowable wrong accrues when the plaintiff learns, or reasonably should have learned, that he has been harmed by the defendant's conduct. See Ross v. Garabedian, 433 Mass. 360, 363 (2000). At the summary judgment stage, the court must determine "if a material question of fact exists as to whether the plaintiff 'had (1) knowledge of sufficient notice that [he] was harmed and (2) knowledge or sufficient notice of what the cause of harm was.'" Id., quoting Phinney v. Morgan, 39 Mass. App. Ct. 202, 209 (1995) (alteration in original). See also Riley, 409 Mass. at 240 ("[W]e recognize that ordinarily when a plaintiff knew of should have known of [his] cause of injury is a factual issue to be decided by the trier of fact[.]").

Here, the plaintiff alleges that he only recently (within the years of 2009-2011) gained knowledge that he was harmed by Wiles, and in turn, the defendants. The plaintiff claims that his memory was repressed due to a condition known as traumatic amnesia, and therefore, he did not know he was harmed until later in life. Furthermore, he claims that he did not know that Wiles, and in turn the defendants, were the cause of this arm. The court agrees that this issue presents a question of fact as to whether the plaintiff knew, or should have known, that he was harmed. See Ross, 433 Mass. at 366 ("A rational finder of fact could find that the plaintiff . . . felt shame or sense of wrong" at the time of the abuse, "but he was not aware that he had suffered any appreciable or legally recognizable harm.'"); Armstrong v. Lamy, 938 F. Supp. 1018, 1040 (D. Mass. 1993) (plaintiff s symptoms of being "uncomfortable," "scared," and "nervous," at time of attacks, pain on arm as a resulted from being gripped, and insomnia during period of attacks, was not enough to show that he knew of should have known he had been harmed, as "a finder of fact could reasonably find that the[] fleeting moments of physical pain were not perceived by [the plaintiff] at the time as ‘injury. . . .'").^[3]

Furthermore, the court agrees that even assuming the plaintiff was aware of the harm he suffered from the abuse (as he was battling with anxiety, depression, and alcohol abuse), a question of fact remains as to the second part of the discovery rule, i.e., whether the plaintiff had notice of what the cause of harm was. See Ross, 433 Mass. at 363 (summary judgment not appropriate as it was "unclear whether . . . the plaintiff perceived a causal connection between a defendant's misconduct and the plaintiff's alleged psychological harm."); Eilert v. Carey, 8 Mass. L. Rptr. 491 at *6 (Mass. Super. 1998) (Toomey, J.), accord Ross, 433 Mass. at 366 n.8 (summary judgment not appropriate as issues of material fact exist regarding when plaintiff made a casual connection necessary to trigger statute of limitations). Given these material facts in dispute, summary judgment cannot be granted on this basis.

B. Boy Scouts and Mohegan's Liability for the Actions of Troop 99

Next, the defendants claim that they cannot be held liable for the conduct of local troops that implement the scouting program. In support of this proposition, the defendants cite to multiple decisions outside of the Commonwealth^[4] that have essentially held that the evidence before them failed to establish an...