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Feb 05 2014

NY Federal Courts Divided Over Timing Of Sexual Abuse Claims

The recent outcry over Dylan Farrow’s resurgent allegations against filmmaker Woody Allen has sparked discussion about the ability to bring claims for past wrongs performed against children. This issue was also a topic of discussion due to the YouTube video of a 27 year old woman who confronted her former Middle School gym coach over a sexual encounters they had when the woman was 12 years old. The woman recorded the coach’s admission that her conduct was illegal and immoral; the coach subsequently resigned from her current job as an Assistant High School Principal. The general consensus is that these claims are out of the reach of the courtroom due to the statute of limitations.

Depending on the allegations, these types of claims are subject to a one year or three year statute of limitations. For harms committed to minors, the time begins to run when the minor turns 18. So generally, once someone turns 21, all claims are lost. An exception has been carved out, however for claims against schools that allegedly kept employed teachers and staff members with a known history of sexual abuse. In Zimmerman v. Poly Prep, a 2012 decision from the Eastern District of NY, Judge Frederic Block held that the school’s fraudulent concealment of their knowledge of the sexually abusive behavior of the accused football coach allowed claims to survive even though some of them occurred in 1966, over forty years earlier. The judge pointed to the man y publications touting the coach as a man of honor; his being regularly feted and awarded honors during his long tenure at the school; and his being given a lavish retirement dinner in 1991 when in fact he was forced out due to continued sexual abuse claims. The court held that this “fraudulent concealment” tolls the statute of limitations as a defendant should not by affirmative acts and statements to the plaintiff hide the facts of his own wrongdoing.

The court went onto state that the parties were in a fiduciary relationship as a school acts in loco parentis (in the place of a parent) towards its students and that it breaches this duty when it hides evidence of its wrongdoing by making positive statements about the abuser.

Blind and occasionally fickle

Blind and occasionally fickle

But last week, NY Southern District Judge John Koeltl dismissed the complaint in Twersky v. Yeshiva University, a case in which 34 former students at Yeshiva University High School for Boys sought $680 million in damages for alleged abuse between 1968 and 1992 at the hands of an administrator, a teacher, and a one-time student who they claimed was given free run of the dorms. The plaintiffs cited to numerous positive statements made over the years to the school community at large about the three alleged abusers after the lead plaintiff made an abuse allegation against one of the abusers to Yeshiva University president and chancellor Norman Lamm in 1983, and Lamm took no action.

In an article in the Jewish Daily Forward in 2012 exposing the abuse, Lamm told a reporter “if it was an open-and-shut case I just let [the staff member] go quietly. It was not our position to destroy a person without further inquiry.” But in his 2013 resignation letter, Lamm conceded his approach was “ill-conceived” and the Twersky plaintiffs said in their complaint that they could not have known about the school’s awareness of sex abuse until the “length and extent of the cover up was first presented” in the Jewish Daily Forward article.

While this was the same exact argument made to Judge Block, Judge Koeltl said the three-year statute of limitations­­ has long since run. He rejected an argument based on Zimmerman that positive statements about alleged abusers to the general community after some abuse had been reported to a school official stopped the defendant school from invoking a statute of limitations defense.The plaintiff’s lawyer in Zimmerman represented the plaintiffs in this case as well. But this time the court was not buying the in loco parentis argument stating:

“[T]here is nothing about general statements to the community that prevented the plaintiffs from knowing they were abused, who had abused them, and who employed their abusers. In this case, the statutes of limitations have expired decades ago, and no exceptions apply.”

Koetl shifted the burden to the children, now long into adulthood:
They knew of their abuse, they reached the age of majority and sat on their claims, they are out of the box. Koetl disagreed that NY holds that the in loco parentis standard rises to the level of a fiduciary relationship. But he went on to add that even if he believed NY did treat “student and school” as a fiduciary relationship, “any such relationship between the schools and the students ceased at the very latest when the students left or graduated.”

These two cases show how random the practice of law can be. Same set of facts; same lawyer; opposite results. The case will now likely head to the Second Circuit, the federal appeals court overseeing both the Eastern and Southern Districts, which will break the tie. Likely, the Second Circuit will send a certified question to NY’s Court of Appeals to determine whether
“a fiduciary relationship sufficient to trigger estoppel-by-passive-concealment exists between a school and its students, or whether such a duty is breached by the school’s failure to disclose prior incidents of sexual abuse.” Judge Koetl disagreed with Judge Block that NY’s highest court has already answered that question.

So we have to wait until this is determined by a higher court. Meanwhile, the claims of the plaintiffs in Twersky remain in limbo. Undoubtedly, they sought out their lawyer after seeing his success in the Zimmerman case and assumed that the law would be applied the same way in their case since the facts were essentially the same. Learning of the randomness of the law was another harsh lesson for them.

Read more: http://www.newyorklawjournal.com/id=1202641274960/Federal-Judges-Dispute-Timing-of-Sexual-Abuse-Claims#ixzz2sUKhDEZG

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