Colosimo v. Roman Catholic Bishop of Salt Lake

2007 UT 25
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
Charles Matthew Colosimo, an
individual, and Ralph Louis
Colosimo, an individual,
Plaintiffs and Petitioners,
v. 	No. 20050074
Roman Catholic Bishop of Salt
Lake City dba Catholic Diocese
of Salt Lake City, a Utah
corporation sole; Archdiocese
of San Francisco, a foreign
entity; Oblates of St. Francis
de Sales, a foreign entity;
Judge Memorial High School
Board of Financial Trustees, a
Utah corporation; Thomas P.
O’Neill, an individual;
Francis J. Gross, an individual;
W. Ivan Cendese, an individual;
James F. Rapp, an individual;
John Does I-V, individuals and/or 	F I L E D
entities,
Defendants and Respondents. 	March 13, 2007
---
Third District, Salt Lake
The Honorable Paul G. Maughan
No. 030903607
Attorneys: 	Larry R. Keller, Felise L. Thorpe Moll, Salt Lake
City, for Charles and Ralph Colosimo
Matthew F. McNulty, III, Mark A. Wagner, Tacy A.
Hartman, Salt Lake City, for Roman Catholic Bishop,
Judge Memorial
Tim Dalton Dunn, Stephen D. Alderman, Salt Lake City,
for Archdiocese of San Francisco
Russell C. Fericks, Mark L. McCarty, Zachary E.
Peterson, Salt Lake City, for Oblates of St. Francis
de Sales, Thomas O’Neill, Francis Gross, W. Ivan
Cendese

No. 20050074 	2
---
On Certiorari to the Utah Court of Appeals
PARRISH, Justice:
INTRODUCTION
¶1 	Ralph Louis Colosimo and Charles Matthew Colosimo filed
suit against Judge Memorial High School and its former
administrators (collectively, “Judge”); the Salt Lake Diocese,
Judge’s Board of Financial Trustees, the Oblates of St. Francis
de Sales, the Archdiocese of San Francisco (collectively, the
“institutional defendants”); and individual defendant James F.
Rapp, a former teacher at Judge. 	The Colosimos seek damages
arising from their alleged sexual abuse by Rapp more than three
decades ago. 	The district court entered default judgment against
Rapp, but dismissed the claims against the institutional
defendants on statute of limitations grounds. 	The Colosimos
appealed, arguing that the discovery rule tolled the running of
the statute until they became aware of their claims against the
institutional defendants. 	The court of appeals affirmed the
dismissal. 	We granted certiorari to determine whether the
Colosimos’ awareness of the sexual abuse entailed a reasonable
knowledge of, or a duty to inquire about, the facts necessary to
support their claims that the institutional defendants knew of
the abuse and failed to adequately supervise Rapp or prevent the
abuse. 	For the reasons detailed below, we conclude that it did
and therefore affirm the dismissal of the Colosimos’ claims.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 	Ralph and Charles allege that Rapp sexually abused them
on repeated occasions from approximately 1970 to 1975. 	At the
time of the alleged abuse, Rapp was a Catholic priest, a member
of the Oblates, and a staff member of Judge. 	The Diocese had
supervisory authority over Rapp in his teaching capacity,
apparently sharing this responsibility with the Oblates, a group
of Catholic priests who also supervised Judge. 	The Colosimos
allege that the Archdiocese also “supervises and exerts control
over the Diocese,” although the Archdiocese disputes this claim.
¶3 	Rapp allegedly began abusing Ralph in late 1970 or
early 1971 when Ralph was a minor student at Judge, and the abuse
allegedly continued after Ralph turned eighteen on September 20,
1971. 	Through Ralph, Rapp was introduced to the Colosimo family
and allegedly began sexually abusing Ralph’s younger brother
Charles, sometimes while brandishing a gun. 	At some point in

3 	No. 20050074
1975, Rapp admitted to Ralph that he was a pedophile and that he
was abusing Charles.
¶4 	The Colosimos knew that they had been abused by Rapp
and that they had suffered some immediate injury as a result.
Ralph alleges, however, that he repressed the memory of most
instances of the abuse until a professional therapist allowed
“him to recover his memories and to understand the causal
connection between the assaults and his injuries.” 	Charles never
forgot the abuse, but maintains that he “was unaware of the
connection between the abuse and his injuries until he began
therapy years later.”
¶5 	At the time of the abuse, the Colosimos knew that Rapp
was a Roman Catholic priest, a teacher, and an Oblate and that
these roles were intertwined in his position as an employee of
Judge. 	Despite this knowledge, the Colosimos made no inquiry or
investigation during the statutory period regarding any potential
claims against any of the institutional defendants.
¶6 	In May 2002, the Washington Post published an article
detailing Rapp’s history of sexually abusing young boys. 	It
indicated that even though Judge students had complained about
Rapp, school authorities had taken no apparent action against
him. 	The article suggested that Rapp simply moved from state to
state until an Oklahoma court eventually convicted him of two
counts of lewd molestation. 	Upon reading the article, the
Colosimos realized that the institutional defendants may have had
knowledge of Rapp’s pedophilic actions.
¶7 	On February 18, 2003, the Colosimos filed suit against
Rapp and the institutional defendants, asserting claims for
aggravated sexual assault and battery, negligence, negligent
infliction of emotional distress, intentional infliction of
emotional distress, invasion of privacy, breach of fiduciary
duty, fraud, and false imprisonment. 	The Colosimos allege that
the institutional defendants knew that Rapp had sexually abused
children prior to abusing the Colosimos, yet “deliberately
concealed from [the Colosimos], other Judge students, and
parishioners [their] knowledge of” Rapp’s abusive history in
order to protect their own interests. 	The institutional
defendants responded with motions to dismiss, arguing that the
statute of limitations had run.
¶8 	The Colosimos opposed the motions to dismiss,
contending that the discovery rule tolled the statute of
limitations. 	In the alternative, they requested additional time
to conduct discovery to obtain the evidence needed to resist the

1 Colosimo v. Roman Catholic Bishop of Salt Lake City, 2004
UT App 436, ¶ 20, 104 P.3d 646.
2 State v. Warren, 2003 UT 36, ¶ 12, 78 P.3d 590.
3 Spears v. Warr, 2002 UT 24, ¶ 32, 44 P.3d 742.
4 Id.
5 Dowling v. Bullen, 2004 UT 50, ¶ 7, 94 P.3d 915.
No. 20050074 	4
motions to dismiss. 	After considering the pleadings, memoranda,
and affidavits on file, the district court treated the motions to
dismiss as summary judgment motions and dismissed the Colosimos’
complaint because it was not filed within the limitations period.
¶9 	The Colosimos appealed to this court, which transferred
the appeal to the court of appeals. 	The court of appeals
affirmed the district court’s dismissal, reasoning that the
Colosimos’ claims “do not fall within any of the recognized
situations in which the discovery rule is applicable because [the
Colosimos] could have brought their claims within the limitation
periods based upon the available undisputed facts.” 1
¶10 	This court granted the Colosimos’ petition for
certiorari. 	We have jurisdiction pursuant to Utah Code section
78-2-2(3)(a).
STANDARD OF REVIEW
¶11 	On certiorari review, this court reviews the decision
of the court of appeals, not the decision of the district court. 2
“The applicability of a statute of limitations and . . . the
discovery rule are questions of law, which we review for
correctness.”3 	But the application of the discovery rule also
“involves a subsidiary factual determination–-the point at which
a person reasonably should know that he or she has suffered a
legal injury.” 4 	Therefore, while we review the court of appeals’
decision for correctness, we apply a summary judgment standard of
review to the subsidiary factual determination, which requires us
to “view the facts and all reasonable inferences drawn therefrom
in the light most favorable to the non-moving party.” 5
ANALYSIS
¶12 	The Colosimos contend that summary judgment was
erroneously granted because the running of the limitations period
was tolled by the discovery rule. 	Specifically, they argue that

6 Russell Packard Dev., Inc. v. Carson, 2005 UT 14, ¶ 20,
108 P.3d 741 (internal quotation marks omitted).
7 Utah Code Ann. § 78-12-36 (2002) (indicating that “[i]f a
person entitled to bring an action . . . is at the time the cause
of action accrued, either under the age of majority or mentally
incompetent and without a legal guardian, the time of the
disability is not a part of the time limited for the commencement
of the action”); see also Smith v. Four Corners Mental Health
Ctr., Inc., 2003 UT 23, ¶ 38, 70 P.3d 904 (explaining that an
action is tolled until a plaintiff reaches the age of majority).
5 	No. 20050074
their awareness of their sexual abuse put them on neither actual
nor inquiry notice of potential claims against the institutional
defendants. 	It is this issue on which we granted certiorari.
¶13 	We begin by explaining that the discovery rule can toll
the statute of limitations when there is (1) a statutory tolling
provision, (2) an exceptional circumstance, or (3) fraudulent
concealment. 	We then proceed to examine whether the limitations
period on the Colosimos’ claims was tolled for any of these
reasons. 	We conclude that the period was not tolled because the
Colosimos’ knowledge of their abuse and the relationship between
Rapp and the institutional defendants was sufficient to put them
on inquiry notice of their claims. 	We therefore affirm the court
of appeals.
I. 	THE COLOSIMOS ARE NOT ELIGIBLE FOR APPLICATION
OF THE DISCOVERY RULE
¶14 	As a general matter, “a statute of limitations begins
to run upon the happening of the last event necessary to complete
the cause of action.” 6 	Certain exceptions, however, operate to
toll the statute. 	For example, in the case of a plaintiff who is
under the age of majority or mentally incompetent, the statute of
limitations will be tolled until the plaintiff is free from the
disability. 7 	Because the Colosimos were minors when Rapp began
abusing them, the statute was tolled until they turned eighteen.
The Colosimos argue that the discovery rule continued to toll the
statute even after they reached the age of majority. 	We
therefore look to the discovery rule to determine whether the
Colosimos’ claims are time-barred.
¶15 	The discovery rule tolls a statute of limitations
“until the discovery of facts forming the basis for the cause of

8 Carson, 2005 UT 14, ¶ 21 (internal quotation marks
omitted).
9 Id. ¶¶ 21, 24.
10 Id. ¶ 25.
11 Arndt v. First Interstate Bank of Utah, 1999 UT 91, ¶ 17,
991 P.2d 584.
12 Carson, 2005 UT 14, ¶ 21.
13 See Utah Code Ann. §§ 78-12-25(3), -26(3), -29(4) (2002).
14 Id. § 78-12-26(3).
15 Carson, 2005 UT 14, ¶ 21; see also Baldwin v. Burton, 850
P.2d 1188, 1196 (Utah 1993).
No. 20050074 	6
action.” 8 	It operates either when provided for by statute (the
“statutory discovery rule”) or when required by equity (the
“equitable discovery rule”). 9 	The statute may be tolled under
the equitable discovery rule when either exceptional
circumstances or the defendant’s fraudulent concealment prevents
the plaintiff from timely filing suit. 10 	We accordingly address
whether the limitations period on the Colosimos’ claims was
tolled because of an applicable statutory tolling provision,
exceptional circumstances, or fraudulent concealment. 	In so
doing, we rely primarily on Utah law. 	Because this issue is one
of first impression in Utah, however, we also look to other
jurisdictions for guidance. 11
A. 	The Statutory Discovery Rule
¶16 	The statutory discovery rule applies where “a relevant
statute of limitations, by its own terms, mandates application of
the discovery rule.” 12 	The statutes of limitation applicable to
the Colosimos’ claims range from one to four years. 13 	But only
the statute applicable to the Colosimos’ fraud claim contains a
discovery provision. 	Utah Code section 78-12-26(3) provides that
actions for fraud must be brought within three years, “except
that the cause of action in such case does not accrue until the
discovery by the aggrieved party of the facts constituting the
fraud or mistake.” 14 	The Colosimos argue that this provision,
which is widely interpreted as tolling the running of the
limitations period until a plaintiff “either discover[s] or
should have discovered his or her cause of action,” operates to
toll the statute on their fraud claims. 15

16 Baldwin, 850 P.2d at 1196 (internal quotation marks
omitted); see also Carson, 2005 UT 14, ¶ 22 (indicating that the
statute of limitations begins to run “when a plaintiff first has
actual or constructive knowledge of the relevant facts forming
the basis of the cause of action”).
17 Baldwin, 850 P.2d at 1196.
18 Id. at 1197 n.43.
19 Id. at 1197 (“[I]t is not necessary for a claimant to
know every fact about his fraud claim before the statute begins
to run.”).
7 	No. 20050074
¶17 	A plaintiff is deemed to have discovered his action
when he has actual knowledge of the fraud “or by reasonable
diligence and inquiry should know, the relevant facts of the
fraud perpetrated against him.” 16 	We have particularly
emphasized the importance of the diligence requirement, stating
that “[a] party who has opportunity of knowing the facts
constituting the alleged fraud cannot be inactive and afterwards
allege a want of knowledge” 17 and that “[a] party is required to
make inquiry if his findings would prompt further
investigation.” 18 	In other words, if a party has knowledge of
some underlying facts, then that party must reasonably
investigate potential causes of action because the limitations
period will run. 19
¶18 	In this case, the Colosimos knew that they had been
abused and that Rapp was the abuser. 	They also knew or were
constructively on notice of the relationships between Rapp and
the institutional defendants and of the duties owed to them by
those institutional defendants. 	Specifically, the Colosimos knew
that Rapp was a priest, an Oblate, and a teacher at Judge.
Moreover, the relationships between Rapp and the various
institutional defendants and the oversight functions that the
institutional defendants allegedly exercised over Rapp were
either known to the Colosimos or discoverable during the
limitations period. 	This knowledge was sufficient to trigger a
duty to inquire into potential claims against the institutional
defendants. 	Because the Colosimos failed to do so, they cannot
now allege that they lacked knowledge of their claims. 	We
accordingly hold that Utah Code section 78-12-26(3) did not toll
the limitations period on the Colosimos’ fraud claims.

20 Russell Packard Dev., Inc. v. Carson, 2005 UT 14, ¶ 25,
108 P.3d 741 (internal quotation marks omitted).
21 Burkholz v. Joyce, 972 P.2d 1235, 1237 (Utah 1998)
(internal quotation marks omitted).
22 865 P.2d 1345, 1348 (Utah 1993).
No. 20050074 	8
B. 	Exceptional Circumstances
¶19 	We next consider the Colosimos’ claim that the
applicable statutes of limitation were subject to tolling under
the exceptional circumstances doctrine. 	Under this doctrine, the
limitations period is tolled “where the case presents exceptional
circumstances and the application of the general rule would be
irrational or unjust, regardless of any showing that the
defendant . . . prevented the discovery of the cause of
action.” 20 	For this exception to apply, “an initial showing must
be made that the plaintiff did not know and could not reasonably
have discovered the facts underlying the cause of action in time
to commence an action within [the limitations period].” 21
¶20 	The Colosimos assert that they are entitled to
application of the exceptional circumstances doctrine for two
reasons. 	First, they argue that their lack of knowledge
regarding the causal connection between the abuse and their
injuries constitutes an exceptional circumstance. 	Second, they
argue that the horrendous nature of child sexual abuse
constitutes an exceptional circumstance that justifies tolling
the statute indefinitely in those instances where the fact of
abuse is clearly and convincingly corroborated.
1. 	The Causal Connection Theory
¶21 	We first consider the Colosimos’ claim that their lack
of knowledge regarding the causal connection between the abuse
and their injuries constitutes an exceptional circumstance.
Although Utah courts have not directly addressed this question,
they have analyzed cases involving repression of sexual abuse,
and it is with these cases that we begin our analysis.
¶22 	Utah courts have consistently held that the statute of
limitations in child sexual abuse cases can be tolled only in
narrow circumstances. 	For example, in Olsen v. Hooley, we held
that a plaintiff who has repressed all memory of sexual abuse
cannot be deemed to have reasonable knowledge of the abuse. 22
Under such circumstances, the limitations period is subject to
tolling. 	Tolling is appropriate in such cases because

23 Id.
24 Id. at 1349.
25 821 P.2d 1139, 1140 (Utah 1991).
26 Id. at 1145.
27 Id.
28 972 P.2d 1235 (Utah 1998).
9 	No. 20050074
“[r]epressing the memory of operative facts is, in effect, not
knowing or being aware of those facts.” 23 	But we limited our
holding by “emphasiz[ing] that [the] case involve[d] a plaintiff
who allege[d] that she totally repressed her memory; it [did] not
involve a plaintiff who remembered the abuse but did not realize
until later that the abuse caused the psychological harm
suffered.” 24 	In other words, even though we implicitly
recognized that victims of child sexual abuse may often be unable
to causally connect their abuse to their injuries, we were
unwilling to suggest that such an inability would toll the
statute.
¶23 	Similarly, in O’Neal v. Division of Family Services, we
refused to toll the statute in a case involving a plaintiff who
had been sexually abused as a teenager and was aware of the
abuse, but who had psychologically been unable to reveal the
abuse until many years later. 25 	We reasoned that “[u]nder our
discovery rule cases, his knowledge of the facts underlying the
cause of action precludes his reliance on that rule” because his
“inability to reveal the abuse [was] not the same as his not
knowing of the abuse.” 26 	We accordingly held that he had failed
to diligently pursue his claim. 27
¶24 	In Burkholz v. Joyce, we examined whether the discovery
rule tolls the statute of limitations when, “during the
limitations period, the plaintiff’s knowledge of the operative
facts underlying his cause of action is interrupted by a period
of psychological repression during which [the] plaintiff is
unaware of such facts.” 28 	As in O’Neal, we refused to toll the
statute of limitations, concluding that such a plaintiff cannot
make the initial showing that he “did not know and could not
reasonably have discovered the facts underlying the cause of

29 Id. at 1237 (internal quotation marks omitted).
30 737 N.E.2d 287, 294 (Ill. 2000).
31 Id. at 295.
32 414 F.3d 943, 945 (8th Cir. 2005).
33 Id. at 948; see also Cevenini v. Archbishop of Wash., 707
A.2d 768, 772 (D.C. 1998) (refusing to toll the statute of
limitations “[b]ecause [the plaintiff] was aware of his injuries,
their cause, and some evidence of wrongdoing”).
34 See Kraft, 414 F.3d at 946-47; Cevenini, 707 A.2d at 772;
Parks, 737 N.E.2d at 294-95.
No. 20050074 	10
action in time to commence an action within [the limitations]
period.” 29
¶25 	Courts from other jurisdictions have even more
explicitly refused to toll statutes of limitation in cases where
plaintiffs have been unable to causally connect their knowledge
of being sexually abused with their injuries. 	For example, in
Parks v. Kownacki, a plaintiff was abused by a priest when she
was a minor, and although she was aware of the abuse from the
time it occurred, she was not aware of the connection between the
abuse and her injuries. 30 	The Illinois Supreme Court held that
because she had a reasonable knowledge of the abuse, her “failure
to understand the connection between the abuse and other injuries
[did] not toll the statute of limitations.” 31
¶26 	Similarly, in Kraft v. St. John Lutheran Church, the
Eighth Circuit, applying Nebraska law, refused to toll the
statute of limitations for a plaintiff who allegedly had been
abused by a teacher at a religious school. 32 	That court reasoned
that the plaintiffs’ mental injuries did “not render him
incapable of understanding his legal rights and acting to protect
them,” and “[t]he fact that [the plaintiff] may not have actually
drawn the connection at that point or may not have understood the
extent of his damages did not prevent the statute of limitations
from running.” 33
¶27 	These courts were unwilling to adopt a causal
connection rule because their precedent clearly foreclosed
application of the discovery rule where a victim was sufficiently
aware of the underlying facts to know that a tort had been
committed. 34 	Because the abuse victims in these cases had not
completely repressed knowledge of the abuse, even though they

35 See Kraft, 414 F.3d at 947; Cevenini, 707 A.2d at 772;
Parks, 737 N.E.2d at 294-95.
36 See Burkholz v. Joyce, 972 P.2d 1235 (Utah 1998).
37 601 P.2d 144, 148 (Utah 1979).
38 Colosimo v. Roman Catholic Bishop of Salt Lake City, 2004
UT App 436, ¶ 30, 104 P.3d 646.
39 Utah Code Ann. § 78-14-4 (1976).
40 Id. § 78-12-25.1 (2002).
41 Roark v. Crabtree, 893 P.2d 1058, 1063 (Utah 1995)
(holding that a plaintiff who had been aware of sexual abuse but
had been unable to understand the causal connection between the
abuse she suffered and her injuries could not rely on Utah Code
section 78-12-25.1 to retroactively toll the limitations period).
11 	No. 20050074
were unable to fully connect the abuse to their injuries, they
were deemed to have knowledge of their claims, thus preventing
application of the discovery rule. 35 	Utah precedent evidences a
similar reluctance to apply the discovery rule absent complete
repression of all memory of the abuse. 36 	We therefore conclude
that the exceptional circumstances version of the discovery rule
does not operate to toll the limitations period on a claim when a
victim was aware of the abuse, even though he was unable to
causally connect the abuse to his injuries.
¶28 	The Colosimos attempt to avoid this conclusion by
relying on the case of Foil v. Ballinger, where we stated that
“[w]e see no basis for making a legal distinction between having
no knowledge of an injury . . . and no knowledge that a known
injury was caused by unknown negligence.” 37 	But the Colosimos’
“reliance on Foil is misplaced” 38 because Foil involved a claim
for medical malpractice under the Utah Health Care Malpractice
Act, which contains a provision explicitly tolling the
limitations period until a plaintiff is aware of his injury. 39
¶29 	There is no similar statutory basis for tolling the
limitations period in this case. 	Although the legislature passed
a statute in 1992 that tolls the running of the limitations
period in child sexual abuse cases until the victim knows or
reasonably should know that his injury was caused by the abuse, 40
that statute does not apply retroactively and so is not
applicable here. 41

42 See, e.g., Ross v. Garabedian, 742 N.E.2d 1046, 1048
(Mass. 2001); Cosgriffe v. Cosgriffe, 864 P.2d 776, 780 (Mont.
1993); Osland v. Osland, 442 N.W.2d 907, 908-09 (N.D. 1989);
Oostra v. Holstine, 937 P.2d 195, 197 (Wash. Ct. App. 1997).
43 Ross, 742 N.E.2d at 1048; Cosgriffe, 864 P.2d at 780;
Oostra, 937 P.2d at 197.
44 Oostra, 937 P.2d at 197 (quoting Wash. Rev. Code
§ 4.16.340) (emphasis added)).
45 792 P.2d 18, 23 (Nev. 1990).
No. 20050074 	12
¶30 	In fact, many of the cases the Colosimos cite in
support of their causal connection theory 42 are from
jurisdictions that have based their tolling of the limitations
periods on applicable statutes. 43 	For example, a Washington
state statute indicates that the limitations period in child
sexual abuse cases should be brought “‘[w]ithin three years of
the time the victim discovered or reasonably should have
discovered that the injury or condition was caused by said
act.’” 44 	Thus, in these cases, the courts were not creating new
tolling rules; they were merely applying statutory tolling
provisions. 	Lacking a statutory basis, we decline to hold that a
victim’s inability to tie the abuse to his injury constitutes an
exceptional circumstance under the discovery rule.
¶31 	Because the Colosimos do not allege that they repressed
all knowledge of their abuse, they had knowledge of the operative
facts giving rise to their claims. 	Their inability to connect
the abuse with their injuries does not render them eligible for
application of the exceptional circumstances version of the
discovery rule.
2. 	The Clear and Convincing Requirement
¶32 	The Colosimos also argue that the horrific nature of
child sexual abuse constitutes an exceptional circumstance
justifying tolling. 	The Colosimos urge us to follow the lead of
the Nevada Supreme Court in Petersen v. Bruen 45 and eliminate the
statute of limitations for all child sexual abuse cases where
there is clear and convincing evidence of the abuse. 	Relying on
the deep psychological injuries that child abuse survivors
encounter as adults, the Nevada Supreme Court held that “[i]n
those instances where the fact of abuse is clearly and
convincingly corroborated, we perceive no compelling need or
policy which justifies the intervention of a period of

46 Id.
47 Utah Code Ann. § 78-12-25.1 (2002).
48 Roark, 893 P.2d at 1063.
49 See 2B Norman J. Singer, Statutes and Statutory
Construction § 53:01 (“Harmony and consistency are positive
values in a legal system because they serve the interests of
impartiality and minimize arbitrariness . . . . 	In fact, courts
have been said to be under a duty to construe statutes
harmoniously where that can reasonably be done.”).
50 See Roark, 893 P.2d at 1061-62 (indicating that during
house debates “Representative Valentine questioned, ‘If we pass
this bill, now, does that mean that some event that occurred 40
or 50 years ago, even though under our present statute would not
be actionable, now becomes actionable?’”).
13 	No. 20050074
limitations to eliminate the right of [child sexual abuse]
victims to seek recovery against their abusers.” 46
¶33 	We recognize the horrific effects of child abuse and
the serious problems that victims of abuse face as adults as they
attempt to understand the causal connection between their
injuries and the abuse. 	But we nevertheless decline to adopt the
Petersen rule because it is contrary to Utah’s statutory scheme.
In 1992, the Utah legislature passed a statute specifically
addressing the limitations period in cases of child sexual
abuse. 47 	Although this statute does not apply retroactively and
is inapplicable here, 48 it nevertheless reveals the legislature’s
intent that child sexual abuse cases be subject to a statute of
limitations. 	In light of this, it would be inappropriate for us
to conclude that pre-1992 claims of child sexual abuse are immune
from a limitations period. 49
¶34 	Were we to adopt the Nevada rule, we would effectively
be extending greater rights to pre-1992 victims of child sexual
abuse than to those who were victimized after 1992. 	In other
words, pre-1992 victims could bring claims indefinitely because
their claims would not be subject to any statute of limitations;
whereas post-1992 victims would be bound by the limitations
period contained in Utah Code section 78-12-25.1. 	It would be
unwise to create such an inconsistent result, especially where
the legislature has expressed the view that events which happened
decades ago should not become actionable. 50 	Should the
legislature wish to modify or abolish the limitations period for
pre-1992 victims of child sexual abuse, it may do so, but it is

51 See Avis v. Bd. of Review, 837 P.2d 584, 587 (Utah Ct.
App. 1992) (“State legislatures possess the discretion to enact
statutes of limitations, and these statutes are presumptively
constitutional.”); see also S.V. v. R.V., 933 S.W.2d 1, 26 (Tex.
1996) (indicating that it is the role of legislatures to decide
how statutes of limitations should be applied in child sexual
abuse cases because they can appreciate “all the interests
affected”).
52 See, e.g., Petersen v. Bruen, 792 P.2d 18, 20 (Nev.
1990); Debbie Reynolds Prof’l Rehearsal Studios v. Superior
Court, 30 Cal. Rptr. 2d 514, 520 (Ct. App. 1994) (indicating that
a liberalized statute of limitations for child abuse victims
applies only to cases against individual perpetrators); Michael
Krauss, Note, Fundamental Fairness in Child Sexual Abuse Civil
Litigation, 8 Stan. L. & Pol’y Rev. 205 (1997). 	But see Daniel
T. Kajunski, Comment, Civil Procedure--Discovery Rule
Inapplicable to Nonperpetrator Defendants in Cases of Childhood
Sexual Abuse–-Kelly v. Marcantonio, 678 A.2d 873 (R.I. 1996), 31
Suffolk U.L. Rev. 751 (1998).
53 Petersen, 792 P.2d at 23.
54 Russell Packard Dev., Inc. v. Carson, 2005 UT 14, ¶ 28,
108 P.3d 741 (indicating that the policy underlying the statute
of limitations is “to promote justice by preventing surprises
through the revival of claims that have been allowed to slumber
until evidence has been lost, memories have faded, and witnesses
have disappeared” (internal quotation marks omitted)).
No. 20050074 	14
not our role to judicially abrogate applicable statutory
limitations. 51
¶35 	Moreover, it would be particularly unwise for us to
abolish the limitations period in this case where the claims at
issue are against institutional defendants that were not the
actual perpetrators of the abuse. 	The assumption that the
defendant is the abuser underlies the Petersen opinion and the
arguments of legal scholars who advocate abolishing limitations
periods in child sexual abuse cases. 52 	The claims at issue on
this appeal, however, have been lodged against nonperpetrator
institutional defendants. 	Thus, rationales of punishment and
allowing “[child sexual abuse] victims to seek recovery against
their abusers” 53 apply with less force and fail to overcome the
policies underlying statutes of limitation. 54 	As the Rhode
Island Supreme Court indicated in Kelly v. Marcantonio, a sex
abuse case where a Catholic diocese was sued for the actions of
some of its priests, the court was not able to find any

55 678 A.2d 873, 876, 878 (R.I. 1996); see also Debbie
Reynolds, 30 Cal. Rptr. 2d at 520 (indicating that the
legislature did not intend that the statutory discovery rule
would apply to nonperpetrator defendants); Sandoval v.
Archdiocese of Denver, 8 P.3d 598, 602 (Colo. Ct. App. 2000)
(same). 	But see Almonte v. N.Y. Med. Coll., 851 F. Supp. 34, 37
(D. Conn. 1994) (indicating that an extended limitations period
for child abuse claims applies to nonperpetrators as well as
perpetrators).
56 See Beaver County v. Prop. Tax Div., 2006 UT 6, ¶ 32, 128
P.3d 1187 (“We have counseled that courts should be cautious in
tolling a statute of limitations; liberal tolling could
potentially cause greater hardships than it would ultimately
relieve. 	The doctrine of equitable tolling should not be used
simply to rescue litigants who have inexcusably and unreasonably
slept on their rights.” (citation and internal quotation marks
omitted)).
57 Id. ¶ 46.
15 	No. 20050074
“persuasive policy” justification for contravening legislative
intent and disregarding the statute of limitations in cases
against nonperpetrator defendants. 55
¶36 	We similarly can discern no persuasive justification
for eliminating the statute of limitations in this case.
Although we recognize that child abuse has devastating
consequences, prior precedent, legislative intent, and the fact
that this case involves nonperpetrator institutional defendants
all counsel against eliminating the statute of limitations. 56
“While this outcome may seem harsh” because it allows some abuse
to go uncompensated, “it is the necessary result of having
limitations periods and the accompanying benefit of finality for
which these statutes were designed.” 57 	We therefore decline to
follow the Nevada approach. 	Instead, we hold that a plaintiff’s
ability to establish the fact of abuse by clear and convincing
evidence does not constitute an exceptional circumstance under
the discovery rule.
C. 	Fraudulent Concealment
¶37 	We next examine whether the Colosimos can rely on the
fraudulent concealment doctrine to toll the statute. 	The
Colosimos allege that they are entitled to rely on this doctrine
because the institutional defendants concealed their
responsibility for the abuse. 	Because a plaintiff must
diligently investigate his claim to prevail under a theory of

58 2005 UT 14, ¶¶ 25-43, 108 P.3d 741.
59 Id. ¶ 25 (internal quotation marks omitted).
60 Id. ¶ 44.
61 Id. ¶ 26.
62 Id. ¶ 38 (quoting Berenda v. Langford, 914 P.2d 45, 51
(Utah 1996)).
No. 20050074 	16
fraudulent concealment, we examine whether the Colosimos’
knowledge of the abuse and of Rapp’s connection with the
institutional defendants imposed on them a duty to investigate
potential claims against the institutional defendants.
¶38 	We recently articulated the requirements of the
fraudulent concealment version of the discovery rule in Russell
Packard Development, Inc. v. Carson.58 	Under the fraudulent
concealment doctrine, Utah courts toll the running of the
limitations period if “a plaintiff does not become aware of the
cause of action because of the defendant’s concealment or
misleading conduct.” 59 	In order to qualify for application of
the fraudulent concealment doctrine,
a plaintiff must demonstrate either (1) that
the plaintiff neither knew nor reasonably
should have known of the facts underlying his
or her cause of action before the fixed
limitations period expired; or (2) that
notwithstanding the plaintiff’s actual or
constructive knowledge of the facts
underlying his or her cause of action within
the limitations period, a reasonably diligent
plaintiff may have delayed in filing his or
her complaint until after the statute of
limitations expired. 60
¶39 	In Carson, we emphasized that a party seeking to take
advantage of the rule must act in a reasonable and diligent
manner. 61 	We also suggested that “inquiry notice operates
differently ‘when a plaintiff alleges that a defendant took
affirmative steps to conceal the plaintiff’s cause of action.’” 62
In such cases, once a plaintiff has made a prima facie showing of
fraudulent concealment, the
plaintiff will be charged with constructive
notice of the facts forming the basis of a

63 Id. (citing Berenda, 914 P.2d at 51-52).
64 Id. ¶ 38 n.7.
65 Id. ¶ 26.
66 Id. ¶ 22.
67 Id. ¶ 26.
17 	No. 20050074
cause of action only at that point at which a
plaintiff, reasonably on notice to inquire
into a defendant’s wrongdoing, would have,
with due diligence, discovered the facts
forming the basis for the cause of action
despite the defendant’s efforts to conceal
it. 63
¶40 	Relying on this language, the Colosimos assert that
their failure to inquire about possible causes of action against
the institutional defendants should be excused because any such
inquiry would have been futile. 	We disagree. 	The language on
which the Colosimos rely does not excuse a plaintiff’s lack of
inquiry whenever he alleges that any inquiry would have been
futile. 	Rather, it serves only to illustrate the concept that a
plaintiff must be reasonably diligent in pursuing his claims.
Thus, “in cases of fraudulent concealment, a plaintiff will not
automatically be charged with constructive notice of a claim
simply by virtue of being on inquiry notice of it”; 64 instead,
determining when a plaintiff knew or should have known of a cause
of action requires evaluating “the reasonableness of a
plaintiff’s conduct in light of the defendant’s fraudulent or
misleading conduct.” 65 	This suggests that before a plaintiff may
rely on the fraudulent concealment doctrine, he must have
actually made an attempt to investigate his claim and that such
an attempt must have been rendered futile as a result of the
defendant’s fraudulent or misleading conduct.
¶41 	In Carson, we repeatedly described the requirements of
the fraudulent concealment doctrine using terms such as
“reasonableness” and “diligence.” 	And we emphasized that
although a plaintiff’s cause of action does not begin to run
until “a plaintiff first has actual or constructive knowledge of
the relevant facts forming the basis of the cause of action,” 66 a
plaintiff cannot idly wait for a claim to present itself; rather,
a plaintiff must act with reasonable diligence to discover “the
facts constituting his or her cause of action.” 67 	There is
nothing in Carson to suggest that a plaintiff who was aware of

68 914 P.2d 45 (Utah 1996).
69 See id. at 52 (indicating that “the fraudulent
concealment version of the discovery rule requires a
determination of (i) when a plaintiff would reasonably be on
notice to inquire into a defendant’s wrongdoing despite the
defendant’s efforts to conceal it; and (ii) whether a plaintiff,
once on notice, would reasonably have, with due diligence,
discovered the facts forming the basis of the cause of action
despite the defendant’s efforts to conceal those facts”).
70 Id. at 52-53.
71 Id. at 53.
72 Id.; see also Carson, 2005 UT 14, ¶ 39.
73 Carson, 2005 UT 14, ¶ 39 (internal quotation marks
omitted).
No. 20050074 	18
tortious conduct but undertook no inquiry or investigation would
be excused from the diligence requirement merely by speculating
that any inquiry or investigation would have been futile.
¶42 	This reading of Carson is bolstered by Berenda v.
Langford, 68 a case on which Carson relied. 	Berenda contains
language similar to that contained in Carson and on which the
Colosimos rely. 69 	But Berenda uses this language only in its
general description of the fraudulent concealment rule. 70
Although it recognizes that some federal cases have interpreted
the fraudulent concealment rule “to excuse the diligence
requirement when . . . successful concealment would fool even the
most diligent hypothetical plaintiff,” Berenda specifically
declines to adopt the futility doctrine or other “such artificial
legal subrules.” 71
¶43 	In Berenda, we reasoned that “questions of when a
plaintiff should reasonably begin inquiring about the defendant’s
wrongdoing and whether, once on notice, the plaintiff has acted
with reasonable diligence to discover the facts forming the basis
of the cause of action are all highly fact-dependent legal
questions.” 72 	Even though such issues are “highly fact-dependent
legal questions,” 73 this does not mean that plaintiffs can avoid
summary judgment simply by asserting that it would have been
futile for them to inquire about potential claims. 	Indeed, if a
plaintiff has made no inquiry, there can generally be no factual
basis on which to conclude that an inquiry would have been
futile. 	Because it would be pure speculation to conclude that

74 Id. (quoting Berenda, 914 P.2d at 54).
75 See, e.g., Helleloid v. Indep. School Dist. No. 361, 149
F. Supp. 2d 863, 869 (D. Minn. 2001); Mark K. v. Roman Catholic
Archbishop of L.A., 79 Cal. Rptr. 2d 73, 79 & n.11 (Ct. App.
1998); Cevenini v. Archbishop of Wash., 707 A.2d 768, 774 (D.C.
1998); Meehan v. Archdiocese of Phila., 2005 PA Super 91, ¶¶ 22-
25, 870 A.2d 912.
76 149 F. Supp. 2d at 864.
77 Id. at 869.
78 Id. at 870 (emphasis added).
79 Id. at 871 (internal quotation marks omitted).
80 Id. at 869 (internal quotation marks omitted).
19 	No. 20050074
the plaintiff’s inquiries would have been futile, “‘the facts
underlying the allegation of fraudulent concealment’” could not
survive summary judgment. 74
¶44 	Other jurisdictions have similarly held that plaintiffs
with knowledge of underlying facts must reasonably investigate
their claims in order to rely on the fraudulent concealment
doctrine. 75 	They have emphasized that a defendant’s mere silence
in the face of a plaintiff’s failure to use reasonable diligence
in investigating a claim is insufficient evidence of fraudulent
concealment to warrant tolling the statute of limitations. 	For
example, in Helleloid v. Independent School District Number 361,
a teacher sexually abused a mentally disabled student, yet the
school district hid its knowledge of the abuse from the student’s
parents.76 	Even though the court recognized that statute of
limitations questions in a fraudulent concealment context are
normally “questions of fact, unsuited for summary judgment,” 77
the court nonetheless refused to toll the limitations period
because the parents had not put forth “any effort” to inquire of
the district. 78 	It reasoned that the “doctrine of fraudulent
concealment [is] not intended to protect those who are not
vigilant in advancing their legal claims,” 79 and that “[i]n no
case . . . is mere silence or failure to disclose sufficient in
itself to constitute fraudulent concealment.” 80

81 707 A.2d at 770.
82 Id. at 774.
83 Id.; see also Meehan, 2005 PA Super 91, ¶¶ 22-25
(indicating that there was not any fraudulent concealment because
the plaintiffs had not questioned the Diocese); Aquilino v.
Phila. Catholic Archdiocese, 2004 PA Super 339, ¶ 19, 884 A.2d
1269 (indicating that the plaintiff could not use the concealment
doctrine to toll the limitations period on his claims because he
had “failed to aver that he questioned the Archdiocese about his
abuser at any time” (internal quotation marks omitted)).
84 79 Cal. Rptr. 2d at 79.
85 Id. at 79 & n.11.
No. 20050074 	20
¶45 	Similarly, in Cevenini v. Archbishop of Washington, a
priest sexually abused the plaintiffs when they were minors. 81
But the court refused to toll the statute of limitations,
reasoning that the plaintiffs had failed to allege any
“affirmative acts of concealment” and that it was “unwilling to
hold that a failure to disclose information that has not even
been requested constitutes fraudulent concealment.” 82 	It further
held that even if there had been fraudulent concealment, this
still would not toll the limitations period because “fraudulent
concealment is available only to a plaintiff who has exercised
due diligence in the pursuit of his cause,” and these plaintiffs
had not taken any actions that would meet the requirements of due
diligence. 83
¶46 	A California court in Mark K. v. Roman Catholic
Archbishop of Los Angeles similarly refused to toll the statute
of limitations on the plaintiffs’ claims where the plaintiffs
were aware of the underlying abuse but had made no effort to
investigate their claims. 84 	It reasoned that where the
plaintiffs had not investigated their claims, it would not be
appropriate for the court to toll the limitations period. 85
¶47 	Plaintiffs are not excused from the due diligence
requirement simply by alleging that any investigation into the
culpability of the institutional defendants would have been
futile. 	Where a plaintiff is aware he has been abused and knows
the identity of the abuser and the relationship between the
abuser and any institutional defendants, he must undertake a
reasonable investigation into claims against the institutional

86 See Meehan, 2005 PA Super 91, ¶ 25.
87 See id.
88 Carson, 2005 UT 14, ¶¶ 10-11.
21 	No. 20050074
defendants before he can qualify for tolling under the fraudulent
concealment doctrine. 86
¶48 	In summary, we recognize a futility component to the
fraudulent concealment doctrine in only two narrow circumstances.
First, where a plaintiff has made inquiry and then been misled by
the defendants, he has raised sufficient evidence of the futility
of further investigation to survive summary judgment. 87 	But it
is the existence of the inquiry and the defendant’s response that
provides the trier of fact with the evidence necessary to
evaluate whether there was fraudulent concealment and whether the
plaintiff reasonably investigated his claims.
¶49 	Second, a plaintiff’s lack of inquiry may be excused
where the defendant has affirmatively concealed from the
plaintiff the facts necessary to put the plaintiff on inquiry
notice. 	A plaintiff cannot be expected to inquire about the
existence of a claim that is entirely concealed from him when
there is nothing to put him on inquiry notice. 	Such was the
situation in Carson, where during much of the limitations period,
the plaintiffs had neither knowledge that a tort had been
committed nor knowledge of facts sufficient to place them on
inquiry notice. 88 	Because they lacked such knowledge, they acted
reasonably in not investigating.
¶50 	Here, however, the Colosimos were aware of the abuse by
Rapp and had either actual or constructive knowledge of the
relationship between Rapp and the institutional defendants.
These facts were sufficient to put them on inquiry notice of
potential causes of action against the institutional defendants
and to impose on them a duty to undertake reasonable inquiry as
to the existence of their claims. 	Because the Colosimos concede
they made no such inquiry, they can only speculate that any
inquiry would have been futile or that the defendant entities
would have affirmatively concealed any knowledge of the abuse or
Rapp’s pedophilic tendencies.
¶51 	Mere speculation about the futility of a nonexistent
inquiry is insufficient to toll the limitations period.
Otherwise, any time a tortfeasor failed to affirmatively disclose
potential wrongdoing, any plaintiff, even one who was on inquiry
notice, could allege that any inquiry would have been futile,

89 See Mark K., 79 Cal. Rptr. 2d at 79 (refusing to accept a
rule that would allow a defendant’s silence to toll a statute of
limitations because this would result in a rule where “any time a
tortfeasor failed to disclose evidence that would demonstrate its
liability in tort, the statute of limitations would be tolled
under the doctrine of concealment”).
90 Colosimo v. Roman Catholic Bishop of Salt Lake City, 2004
UT App 436, ¶ 35, 104 P.3d 646.
No. 20050074 	22
thereby tolling the limitations period. 89 	Such a rule would
eviscerate our statutes of limitation.
¶52 	Moreover, under the Colosimos’ theory, claims against
direct tortfeasors such as Rapp would be barred by applicable
statutes of limitation, while claims against remote or
vicariously liable tortfeasors would remain viable indefinitely
until the plaintiffs stumbled upon evidence alerting them to
their claims. 	This would effectively eliminate statutes of
limitation as a defense for remote tortfeasors, while retaining
them as a defense for those most culpable. 	We fail to see the
logic in such a scheme. 	We therefore hold that the fraudulent
concealment version of the discovery rule did not toll the
limitations period on the Colosimos’ claims.
II. 	THE COLOSIMOS ARE NOT ENTITLED TO DISCOVERY
¶53 	The Colosimos alternatively argue that they should be
permitted to conduct discovery. 	They contend that they need
discovery on the issue of whether any inquiries into the
culpability of the institutional defendants would have been
futile. 	Having determined that a plaintiff with knowledge of his
abuse and the relationship between the abuser and the individual
defendants is under a duty to investigate, the Colosimos, who
undertook no investigation, would not be able to discover any set
of facts that would justify tolling the limitations period. 	We
therefore affirm the court of appeals’ holding that the Colosimos
are not entitled to conduct discovery. 90
CONCLUSION
¶54 	Although we recognize the troubling nature of child
sexual abuse, prior precedent and policy considerations counsel
against tolling the statute of limitations in cases where a
plaintiff is aware that he has been sexually abused but fails to
make the causal connection between the abuse and his injuries.
The limitations period similarly cannot be tolled under a
fraudulent concealment or fraud theory in cases where a plaintiff

23 	No. 20050074
with knowledge of his abuse and the relationship of the abuser to
third-party defendants fails to investigate potential claims
arising from the abuse. 	Here, the Colosimos were aware they had
been abused by Rapp and were also aware of Rapp’s relationship
with the institutional defendants. 	Because they failed to
investigate their claims during the limitations period, we affirm
the court of appeals’ decision that their claims are barred by
applicable statutes of limitation.
---
¶55 	Chief Justice Durham, Associate Chief Justice Wilkins,
Justice Durrant, and Justice Nehring concur in Justice Parrish’s
opinion.