C.C. v. B.L.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-1395

C.C.

vs.

B.L.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff alleged that the defendant violently raped

her in 2015, later causing her to suffer gastrointestinal

dysfunction. In 2020, she was diagnosed with an abnormal

contraction of her pelvic floor due to the rapes; she underwent

surgery including the removal of her entire colon. She asserted

claims for battery and for intentional infliction of emotional

distress. A judge allowed the defendant's motion to dismiss,

concluding that because the plaintiff knew in 2015 that she had

been injured by the rapes, the statute of limitations began to

run in 2015, making the plaintiff's 2023 lawsuit untimely. We

reverse that order, vacate the judgment, and remand.
Background. In assessing the propriety of the dismissal

"[w]e accept as true the facts alleged in the plaintiff['s]

complaint as well as any favorable inferences that reasonably

can be drawn from them." Galiastro v. Mortgage Elec.

Registration Sys., Inc., 467 Mass. 160, 164 (2014). The

plaintiff's complaint alleges as follows. In September 2015,

the defendant violently raped the plaintiff while she slept and

then raped her again hours later. The plaintiff underwent a

sexual assault examination but did not realize at the time that

she had suffered severe internal injuries from the rapes.

It was not until February 27, 2020 -- four years and five

months after the rapes -- that the plaintiff was told that her

pelvic floor was not working properly, resulting in "unspecified

constipation" for which she was referred to physical therapy.

On April 28, 2020, she was diagnosed with "Outlet Disfunction

caused by abnormal contraction of the pelvic floor due to trauma

of the sexual assault(s)" by the defendant. The plaintiff

underwent tests, treatments, and surgeries due to her injuries,

including the full removal of her colon. The complaint was

filed on February 8, 2023.

Discussion. We review de novo the motion judge's

conclusion that the plaintiff's claims were barred by the three-

year statute of limitations. Crocker v. Townsend Oil Co., 464

Mass. 1, 5 (2012). In doing so, we accept the plaintiff's well-

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pleaded factual allegations as true, and consider whether they

"raise a right to relief above the speculative level" (citation

omitted). Iannacchino v. Ford Motor Co., 451 Mass. 623, 636

(2008).

General Laws c. 260, § 2A, provides that actions of tort

shall be commenced only within three years "after the cause of

action accrues." "Generally, under our discovery rule, a claim

accrues and the statute of limitations clock commences when a

plaintiff knows, or reasonably should have known, 'that she has

been harmed or may have been harmed by the defendant's

conduct.'" Evans v. Lorillard Tobacco Co., 465 Mass. 411, 449

(2013), quoting Bowen v. Eli Lilly & Co., 408 Mass. 204, 205-206

(1990). Put another way, courts "require that a plaintiff have

(1) knowledge or sufficient notice that she was harmed and

(2) knowledge or sufficient notice of what the cause of harm

was." Bowen, supra at 208.

"[C]ases in which the plaintiffs suffer successive, but

distinct, injuries, . . . may give rise to separate causes of

action." Olsen v. Bell Tel. Labs., Inc., 388 Mass. 171, 176

(1983). "[I]f there are multiple injuries, there will be

multiple causes of action with multiple dates of accrual if the

injuries are 'separate and distinct.'" Cigna Ins. Co. v. Oy

Saunatec, 241 F.3d 1, 10 (1st Cir. 2001).

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"Where injury is present but not discernible, or an injury
is recognized but its cause is not ascertainable, accrual
of the cause of action is held to be in abeyance until the
time when a modicum of knowledge supplants ignorance in the
mind of the claimant, or may be reasonably imputed to her."

Lijoi v. Massachusetts Bay Transp. Auth., 28 Mass. App. Ct. 926,

928 (1990).

The plaintiff knew the defendant raped her in September

2015; one may infer from the allegations in the complaint that

she (1) was twice "violently raped," and (2) underwent a rape

examination that showed some injuries. But those are not the

injuries for which she sued, and "the claim does not accrue

until that particular disease is manifested." Evans, 465 Mass.

at 449. It was not until later that the plaintiff's

gastrointestinal symptoms manifested and not until April 2020

that those symptoms were linked to the rapes.

Unless the plaintiff "reasonably should have known" earlier

that her gastrointestinal symptoms resulted from the rapes, we

cannot say the complaint was untimely under the discovery rule.

See Bowen, 408 Mass. at 210 ("we test the accrual of her cause

of action by what a reasonable person in her position would have

known or on inquiry would have discovered at various relevant

times"). See also Genereux v. American Beryllia Corp., 577 F.3d

350, 361 (1st Cir. 2009) (applying Massachusetts discovery rule,

inappropriate to allow summary judgment for defendant where

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plaintiff's preexisting asthma may have affected reasonableness

of attributing breathing problems to beryllium exposure).

Because this case is in its infancy, the record is devoid

of information that speaks to this question. As our cases

recognize, "[g]enerally, an issue concerning what the plaintiff

knew or should have known is a factual question that is

appropriate for the trier of fact." Koe v. Mercer, 450 Mass.

97, 101 (2007). As the case advances, the plaintiff will bear

"the burden of proving both an actual lack of causal knowledge

and the objective reasonableness of that lack of knowledge."

Doe v. Creighton, 439 Mass. 281, 283 (2003), citing Riley v.

Presnell, 409 Mass. 239, 243-247 (1991). The plaintiff "must

show that the nature of the abuse was such that it would cause

an objectively reasonable person to fail to recognize the causal

connection between it and the injuries that it caused." Doe,

supra at 285, citing Riley, supra at 246. We make no guess as

to whether, when the evidence is developed, the plaintiff will

be able to do this. We opine only that the complaint, when read

favorably to the plaintiff, is sufficient to survive a motion to

dismiss.

Koe, 450 Mass. at 102, on which the motion judge relied in

dismissing the case, does not require a contrary result. There,

the plaintiff sued a pastor for emotional injury resulting from

sexual abuse many decades earlier. Applying the discovery rule

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on a summary judgment record, the court concluded that the

plaintiff had been made aware of the connection between the

abuse and his injury more than three years before he filed suit,

and his claim was therefore time barred. The court said that

"the discovery rule does not grant plaintiffs the option of

ignoring connections once they have been made aware of them."

Id. Here, by contrast, the limited record before us does not

establish that the plaintiff was aware of the connection before

February 2020.1

Accordingly, we reverse the order allowing the motion to

dismiss, vacate the judgment, and remand the case for further

proceedings.

So ordered.

By the Court (Sacks, Shin &
Hershfang, JJ.2),

Clerk

Entered: December 23, 2024.

1The timeliness of the claim for intentional infliction of
emotional distress presents a related, possibly distinct issue
that was not addressed by the motion judge and is not addressed
in the sole appellate brief (the plaintiff's). Because the case
is in its early stages, we vacate the dismissal of this claim so
the matter may be developed in the trial court.

2 The panelists are listed in order of seniority.

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