Opinion
X08FSTCV155015023S
04-20-2018
John DOE #1, et al. v. BOY SCOUTS OF AMERICA CORP., et al.
UNPUBLISHED OPINION
OPINION
Hon. Charles T. Lee, Judge
This case comes to the court on the defendants’ motion for summary judgment, based on a statute of limitations, dismissing plaintiffs’ claims against them for negligence in connection with plaintiffs’ alleged sexual abuse by their scoutmaster while plaintiffs were children. The operative complaint, filed May 25, 2017, alleges that the seventeen John Doe plaintiffs and two Jane Doe plaintiffs were abused by the late Donald Dennis, while he was a scoutmaster with three Boy Scout troops in Ridgefield, Connecticut during the 1960s and 1970s. The complaint alleges that Dennis was an agent of the defendant Boy Scouts of America (BSA) and that plaintiffs’ abuse occurred as a result of BSA’s negligence in recruiting scoutmasters and in supervising them, despite knowing that pedophilia was a serious problem during that period. The complaint also alleges that the other two defendants, Fairfield County Council of Boy Scouts of America, Inc., and Connecticut Yankee Council, Inc., Boy Scouts of America, were local councils during the pertinent time period, and under the supervision and control of BSA. According to plaintiffs, all three organizations fraudulently concealed their knowledge of the existence of pedophiles in scouting and of the activities of Scoutmaster Dennis, which prevented plaintiffs from filing their complaint in less than thirty years after their eighteenth birthday, as required by Connecticut’s special statute of limitations for childhood sexual abuse claims, General Statutes Section 52-577d. Anticipating the instant motion, the complaint alleges that defendants’ fraudulent concealment tolled the statute of limitations pursuant to General Statutes Section 52-595 (Fraudulent concealment of a cause of action).
Defendants filed the instant motion on June 30, 2017, along with a memorandum of law and several affidavits and exhibits. Defendants contend that all plaintiffs’ claims are barred by the statute of limitations because all of the plaintiffs were between 53 and 63 years old when this lawsuit was commenced on October 8, 2015. Defendants also contend that Section 52-595 does not apply to toll Section 52-577d because the latter is a statute of repose; and, even if it does apply, plaintiffs cannot demonstrate the elements of fraudulent concealment.
Plaintiffs filed their operative opposition (# 284) on August 24, 2017, along with several affidavits from the plaintiffs and others and various exhibits (## s 280, 282, and 286). Plaintiffs contend that defendants stood in a special fiduciary relationship with plaintiffs and so bear the burden of showing that they did not have actual knowledge of Scoutmaster Dennis’s abuse and did not conceal that knowledge from plaintiffs for purposes of delay.
Defendants filed their reply memorandum on September 5, 2017 (# 287) in which they deny that they stood in a fiduciary relationship with defendants, or that the burden of proof would shift to them to disprove the elements of fraudulent concealment, or that they had any actual knowledge of the alleged abuse or concealed it from plaintiffs for purposes of delaying commencement of their suit. The court heard oral argument on November 30, 2017.
As more fully explained below, the court finds that (1) Section 52-595 is applicable to toll actions under Section 52-577d under appropriate circumstances, (2) the plaintiffs have failed to establish a fiduciary relationship between themselves and defendants, (3) even if they had done so, the burden of proof does not shift to a fiduciary as contended by plaintiffs, and (4) plaintiffs have failed to present evidence establishing that defendants fraudulently concealed knowledge of Scoutmaster Dennis’s abuse of the plaintiffs. Accordingly, the court grants defendants’ motion for summary judgment.
Undisputed Facts
Having reviewed the evidence submitted in connection with this motion, the court finds the following undisputed facts for the purposes of this motion:
A. The Plaintiffs
1. The seventeen John Doe plaintiffs allege that they were abused by Scoutmaster Donald Dennis between 1962 and 1974. At the time of the abuse, these plaintiffs were Boy Scouts with Troops 80, 90 and 172 in Ridgefield, Connecticut. Dennis was a scoutmaster with these troops at the time of the abuse.
2. The John Doe plaintiffs claim they were abused at various Scout events and venues, where Scout leaders and other adults were present. Assistant Scoutmaster, Blair Albrecht, was present and alleged to have participated in some of the events of abuse.
3. The Jane Doe plaintiffs allege that they were children in Dennis’s household and allege that he abused them in connection with his abuse of the Scouts between 1963 and 1973.
4. No plaintiff claims to have notified any defendant of the abuse.
5. The affidavit of John Doe # 15 claims that he too was abused by Dennis and that he witnessed him abusing other Scouts. The affidavit also provides, " [Paragraph] 14. I told my mother about what happened to me. [Paragraph] 15. I immediately quit boy scouts after this event. Donald Dennis ran into me several months after this occurred and threatened me if I told anyone else. I know that my mother told someone in BSA as Donald Dennis was aware and had threatened me not to do it again." (Pls.’ Ex. H, ¶¶ 14-15, # 286).
6. The instant lawsuit was commenced on October 8, 2015, when all plaintiffs were between 53 and 66 years old.
B. The Defendants
7. Defendant Boy Scouts of America is a national nonprofit organization chartered by Congress in 1916 to deliver the Scouting program to American youth through community organizations. Boy Scouts of America charters local groups known as local councils.
8. Defendants Fairfield County Council (FCC) and Connecticut Yankee Council (CYC) are such groups. FCC was formed in 1972 and ceased to exist in 1998. CYC was formed in 1998 through the merger of FCC and the Quinnipiac Councils. CYC serves Fairfield, New Haven and parts of Hartford counties.
9. The Scouting program for the region in which a local council sits is offered through existing community organizations, such as churches, schools, service clubs, or fraternal organizations. These community organizations provide the actual Scouting program for young boys.
10. When a community organization decides to form a Scout unit, it forms a local unit committee that is responsible for promoting the troop and recruiting participants. Once a local unit committee is formed, the community organization then applies to the local council for a charter, which authorizes the community organization to implement the Scouting program. The local chartered organization owns and operates its own Scouting unit, under the direction of the unit committee. The unit committee is responsible for selecting its own members and for recruiting, training, and supervising the adult leaders of the unit, including the scoutmaster.
11. Defendants deny any knowledge of abuse of plaintiffs by Dennis.
12. During the relevant period, the BSA received complaints of abuse by scoutmasters of the scouts in their charge. For many years, BSA has maintained an internal screening system in which were registered volunteers about whom complaints were filed raising questions as to their fitness. The purpose of their files is to prevent inappropriate or predatory volunteers from being reassigned to positions where they would come into contact with the boy scouts. BSA refers to this system as the Ineligible Volunteer Files; plaintiffs refer to it as the " perversion files." Defendants claim that information about these files was disclosed in a newspaper article in 1991. Plaintiffs claim they were not aware of the contents of the files until their disclosure was directed by the Supreme Court of Oregon in 2012.
In Jack Doe 1 v. Corp. of Presiding Bishop of Church of Latter Day Saints, 352 Or. 77, 101, 280 P.3d 377, 391 (2012), the court approved a trial court’s decision to release the Ineligible Volunteer files, that had been trial exhibits, in which the names of the victims and the persons reporting the abuse had been redacted, but the identities of over 1200 alleged predators were disclosed.
13. Defendants deny any knowledge of Donald Dennis’s alleged abuse of plaintiffs. Dennis is not mentioned in the Ineligible Volunteer files. His name does not appear in any document supplied by plaintiffs in connection with this motion. No defendant has any record of alleged or suggested abuse by Dennis. However, a complaint against Assistant Scoutmaster Blair Albrecht was contained in the files.
Discussion
Our Supreme Court recently set forth the standards to be applied to a motion for summary judgment in Stuart v. Freiberg, 316 Conn. 809, 822-23 (2015), " The fundamental purpose of summary judgment is preventing unnecessary trials. See Orenstein v. Old Buckingham Corp., 205 Conn. 572, 574, 534 A.2d 1172 (1987) (‘[s]ummary judgment procedure, generally speaking, is an attempt to dispose of cases in a manner which is speedier and less expensive for all concerned than a full-dress trial’). If a plaintiff is unable to present sufficient evidence in support of an essential element of his cause of action at trial, he cannot prevail as a matter of law. See, e.g., Santopietro v. New Haven, 239 Conn. 207, 225, 682 A.2d 106 (1996) (directed verdict appropriate if evidence is ‘so weak’ that ‘the jury could not reasonably and legally have found that the plaintiff had proved each of [the essential] elements’); Furstein v. Hill, 218 Conn. 610, 627, 590 A.2d 939 (1991) (directed verdict appropriate ‘when the plaintiff has failed to produce any evidence of an essential element of his cause of action’).
" To avert these types of ill-fated cases from advancing to trial, following adequate time for discovery, a plaintiff may properly be called upon at the summary judgment stage to demonstrate that he possesses sufficient counterevidence to raise a genuine issue of material fact as to any, or even all, of the essential elements of his cause of action. See, e.g., Robinson v. Cianfarani, 314 Conn. 521, 524-25, 107 A.3d 375 (2014) (‘[a] material fact ... [is] a fact which will make a difference in the result of the case’); Rusco Industries, Inc. v. Hartford Housing Authority, 168 Conn. 1, 6, 357 A.2d 484 (1975) (test for granting summary judgment ‘is resolved by applying to the established facts the same criteria as used in determining whether a party would be entitled to a directed verdict on the same facts’)." Id.
A. Applicability of General Statutes § 52-577d
" The question of whether a party’s claim is barred by the statute of limitations is a question of law ..." (Internal quotation marks omitted.) Doe v. Boy Scouts of America Corp., 323 Conn. 303, 341 (2016). The applicable statute of limitations for damages to a minor caused by sexual abuse, exploitation or assault is General Statutes Section 52-577d. Id., 323 Conn. 309-10 (Section 52-577d applies to claims against perpetrators and non-perpetrator organizations). Section 52-577d provides as follows: " [N]o action to recover damages for personal injury to a minor, including emotional distress, caused by sexual abuse, sexual exploitation or sexual assault may be brought by such person later than thirty years from the date such person attains the age of majority." General Statutes § 1-1d provides in relevant part: " [O]n and after October 1, 1972 ...‘age of majority’ shall be deemed to be eighteen years."
As a result, plaintiffs herein must not have been older than forty-eight years of age when this action commenced. However, as of October 8, 2015, when this action was commenced, all plaintiffs admittedly were between the ages of fifty-three and sixty-six, and so were five to eighteen years late. Thus, unless the statute of limitations is tolled, all claims fall outside of the time allowed for this type of action.
B. Applicability of General Statutes § 52-595
Plaintiffs assert that the late filing of their claims is excused by operation of the fraudulent concealment statute, Section 52-595, which provides, " If any person, liable to an action by another, fraudulently conceals from him the existence of the cause of such action, such cause of action shall be deemed to accrue against such person so liable therefor at the time when the person entitled to sue thereon first discovers its existence." Plaintiffs claim that, because defendants fraudulently concealed the facts relating to their abuse by Dennis, they were unaware of their causes of action until the release of the Ineligible Volunteer files in 2012 (see n.1, above).
Defendants claim that, while Section 52-595 might toll most statutes of limitations, it cannot do so with respect to the child abuse statute, 52-577d, because that thirty-year statute is a statute of repose. See Barrett v. Montesano, 269 Conn. 787, 795 (2004) (determining that Section 52-577d is a statute of repose). Accordingly, the purpose of Section 52-577d is to cut off all liability after a fixed date, even if the cause of action has not yet accrued. See Daily v. New Britain Machine Co., 200 Conn. 562, 582 (1986) ( " The effect of the statute of repose is that, on occasion, a party’s cause of action will be barred even before the action began to accrue" ). Our Supreme Court explained, " Undoubtedly, statutes of repose differ in some respects from statutes of limitation. ‘While statutes of limitation are sometimes called statutes of repose, the former bars a right of action unless it is filed within a specified period of time after injury occurs, while statute[s] of repose [terminate] any right of action after a specific time has elapsed, regardless of whether there has as yet been an injury.’ " Baxter v. Sturm, Ruger & Co., 230 Conn. 335, 341 (1994) (quoting Black’s Law Dictionary (6th Ed. 1990) p. 927).
Connecticut precedent holds that section 52-595 can apply to extend the time to file claims under 52-577d. In Connell v. Colwell, 214 Conn. 242, 246 n.4 (1990), the Connecticut Supreme Court said,
The defendant also claimed, during oral argument, that the fraudulent concealment exception to the statute of limitations, contained in General Statutes § 52-595, will not save actions brought beyond the three-year repose period contained in General Statutes § 52-584. The defendant was unable, however, to articulate how the language of § 52-595 was to be construed to provide the selective application he suggests. We find no merit to the defendant’s argument. Section 52-595 provides that causes of action fraudulently concealed by a defendant will " accrue against such person so liable therefor at the time when the person entitled to sue thereon first discovers its existence." (Emphasis added.) " It is clear that, when the language of a statute is plain and unambiguous, we need look no further than the words themselves because we assume that the language expresses the legislature’s intent." American Universal Ins. Co. v. DelGreco, 205 Conn. 178, 193, 530 A.2d 171 (1987). Since fraudulent concealment will cause an action to accrue upon the date of discovery rather than on " the date of the act or omission complained of," as specified in § 52-584, we conclude that the exception contained in § 52-595 constitutes a clear and unambiguous general exception to any statute of limitations that does not specifically preclude its application.
Accord, Martinelli v. Bpt. R.C. Diocesan Corp., 196 F.3d 409, 419 (2d Cir. 1999) (" because this statute ‘constitutes a clear and unambiguous general exception to any statute of limitations that does not specifically preclude its application,’ Connell v. Colwell, 214 Conn. 242, 246 n.4, 571 A.2d 116, 118 n.4 (1990), it applies to claims governed by § 52-577d, the sexual assault statute of limitations" ); Rosado v. Bridgeport Roman Catholic Diocese Corp., Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 94 0316394 (Sept. 15, 1997, Thim, J.) (1997 WL 585779, at *2) (" Because § 52-577d does not specifically preclude the application of § 52-595, the latter statute applies" ).
Defendants attempt to distinguish this precedent, but basically just disagree with it. They claim that, intellectually, the fraudulent concealment statute cannot extend a cause of action extinguished by a statute of repose. In support of their contention, they quote extensively from U.S. Supreme Court precedent. See California Public Employees’ Retirement System v. ANZ Securities, Inc. (" CalPERS" ), 137 S.Ct. 2042, 2050, 198 L.Ed.2d 584 (2017); CTS Corp. v. Waldburger, 134 S.Ct. 2175, 2182-83, 189 L.Ed.2d 62 (2014). " The purpose of a statute of repose is to create an absolute bar on a defendant’s temporal liability ... and that purpose informs the assessment of whether, and when, tolling rules may apply. In light of the purpose of a statute of repose, the provision is in general not subject to tolling. Tolling is permissible only where there is a particular indication that the legislature did not intend the statute to provide complete repose but instead anticipated the extension of the statutory period under certain circumstances. For example, if the statute of repose itself contains an express exception, this demonstrates the requisite intent to alter the operation of the statutory period ... In contrast, where the legislature enacts a general tolling rule in a different part of the code- e.g., a rule that suspends time limits until the plaintiff reaches the age of majority- courts must analyze the nature and relation of the legislative purpose of each provision to determine which controls." (Citations omitted; internal quotation marks omitted.) CalPERS, supra, 137 S.Ct. 2050.
Following the U.S. Supreme Court’s guidance, it would appear that our legislature has expressed its purpose that Section 52-595 should apply here because it " constitutes a clear and unambiguous general exception to any statute of limitations that does not specifically preclude its application," as noted in Connell v. Colwell, supra, 214 Conn. 246 n.4 and by the Second Circuit in Martinelli v. Bridgeport Roman Catholic Diocesan Corp., supra, 196 F.3d 419.
Finally, this court does not agree that applying Section 52-595 to a claim barred by Section 52-577d creates an intellectual inconsistency. In Haas v. Haas, 137 Conn.App. 424 (2012), the Appellate Court reconciled a similar issue involving the application of the continuing course of conduct doctrine to toll the running of the statute of repose contained in Section 52-577. In that case, after expiration of the three-year statute, an elderly mother sued her son for mismanagement of her funds and concealment of his wrongdoing. The court affirmed the application of the tolling doctrine, holding
Section 52-577 applies to ... actions alleging fraud ... It is a statute of repose in that it sets a fixed limit after which the tortfeasor will not be held liable and in some cases will serve to bar an action before it accrues ... Nonetheless, [w]hen the wrong sued upon consists of a continuing course of conduct, the statute does not begin to run until that course of conduct is completed ... [Giulietti v. Giulietti, 65 Conn.App. 813, 833, cert. denied, 258 Conn. 946, 947 (2001) ].
The [trial] court’s pivotal determination was its finding that the defendant’s duty to the plaintiff was prolonged by the defendant’s active concealment and withholding of documents and information relating to his initial failure to file the plaintiff’s taxes. This course of conduct continued until the time of the filing of the plaintiff’s complaint and even thereafter, when the defendant deliberately resisted requests for discovery.Haas v. Haas, supra, 137 Conn.App. 433-34. Consistently with this reasoning, and legislative intent as expressed in the statutory language, the court holds that fraudulent concealment, as specified in 52-595, can properly prolong a claim after the statute of repose has run.
C. Failure of Proof with Respect to Fraudulent Concealment
The Appellate Court recently reiterated the requisite elements of fraudulent concealment in Village Mortgage Co. v. Veneziano, 175 Conn.App. 59, 76 (2017):
Section 52-595 provides that " [i]f any person, liable to an action by another, fraudulently conceals from him the existence of the cause of such action, such cause of action shall be deemed to accrue against such person so liable therefor at the time when the person entitled to sue thereon first discovers its existence." Our Supreme Court has stated that " to toll a statute of limitations by way of our fraudulent concealment statute, a plaintiff must present evidence that a defendant: (1) had actual awareness, rather than imputed knowledge, of the facts necessary to establish the [plaintiff’s] cause of action; (2) intentionally concealed these facts from the [plaintiff]; and (3) concealed the facts for the purpose of obtaining delay on the [plaintiff’s] part in filing a complaint on their cause of action. (Internal quotation marks omitted.) Iacurci v. Sax, 313 Conn. 786, 799-800, 99 A.3d 1145 (2014).
As a result, plaintiffs must establish 1) defendants’ actual awareness of the facts necessary to establish plaintiffs’ cause of action; 2) intentional concealment of the facts from plaintiffs, 3) for the purposes of delaying the filing of the complaint. Further, plaintiffs must establish these facts by " the more exacting standard of clear, precise, and unequivocal evidence." Falls Church Grp. v. Tyler, Cooper & Alcorn, LLP, 281 Conn. 84, 105 (2007).
To these three factors, case law has added a fourth, i.e., that the plaintiff was unaware of the facts allegedly being concealed. " Although § 52-595 does not explicitly say so, it clearly implies [a] plaintiff’s ignorance of the facts is a necessary element of tolling under that statute." Martinelli v. Bridgeport Roman Catholic Diocesan Corp., 196 F.3d 409, 427 (2d Cir. 1999); Roe v. St. Francis Hosp. & Med. Ctr., Inc., Superior Court, judicial district of Waterbury, Docket No. X02 UWYCV 085 008069S, at *2 (Dec. 7, 2011, Shaban, J.) (2011 WL 6934767) (summary judgment granted to defendant because plaintiff was aware of cause of action and had told parents and others about abuse); see also, Hodges v. Glenholme Sch., 713 Fed.Appx. 49, 51 (2d Cir. 2017) (" We do not determine whether [plaintiff] has sufficiently pled the elements of fraudulent concealment ... because [plaintiff] has failed to plausibly allege that she was ‘ignorant of the facts that the [defendants have] sought to conceal’ " ).
Plaintiffs seek to minimize their burden of proof by asserting that defendants had a fiduciary relationship with plaintiffs and, therefore, the burden of disproving the elements of fraudulent concealment shifts to defendants. However, the facts of the case do not establish a fiduciary relationship between the parties. Plaintiffs cite the decision in Falls Church, supra, 281 Conn. 108, holding that " a fiduciary or confidential relationship is characterized by a unique degree of trust and confidence between the parties, one of whom has superior knowledge or skill or expertise and is under a duty to represent the interests of the other ... The superior position of the fiduciary or dominant party affords him great opportunity for abuse of the confidence reposed in him." Plaintiffs assert that defendants have a position of superiority and influence over the young Scouts because of the military nature of the organization, the provisions of the Scout Handbook, and the importance of adherence to the Scout Law, which, among other things, emphasizes the duty of obedience and loyalty to the Scoutmaster. They also cite to a 1972 Scoutmaster’s Handbook, which explains that a scoutmaster’s role is " friend, counselor and inspiration to every boy in the troop." Pl. Brief at 22-23.
While plaintiffs may make a strong case for the existence of a fiduciary duty between a Scout and his Scoutmaster, plaintiffs ignore the facts in the record regarding the organizational structure of the defendants. Recent Connecticut authority has held that the BSA and a regional council do not have a special relationship with a Boy Scout plaintiff suing them for damages arising from sexual abuse. Roe No. 1 v. Boy Scouts of Am. Corp., 147 Conn.App. 622, 644 (2014). In Roe 1, the court held,
We conclude that the court properly granted the defendants’ motion for summary judgment. Although the plaintiff alleged that [the perpetrator] was an agent of the defendants, the defendants presented evidence that, under the organizational structure of the Boy Scouts, the local chartered organization is responsible for the selection and supervision of troop leaders. The plaintiff presented no evidence to counter that fact. Thus, the plaintiff failed to establish a genuine issue of material fact.
As the trial court explained, the Boy Scouts has established certain programs that are available to the local chartered organizations, but the defendants do not select the programs or supervise the troop leaders who implement them. The defendants did not assume custody of the plaintiff and were not in control of the programs offered by the local chartered organization or the selection of volunteer troop leaders.Id., 147 Conn.App. 647. The Appellate Court was addressing the same organizational structure as in this case, and its decision is at least persuasive if not controlling here. Accordingly, the court finds that plaintiffs have failed to demonstrate a fiduciary relationship between themselves, the BSA and the regional councils.
Furthermore, even if the court were to find the existence of a fiduciary relationship between these parties, there is no valid Connecticut law to support the shift of the burden of proof to a fiduciary. See Iacurci v. Sax, 139 Conn.App. 386, 395 n.2 (2012), aff’d, 313 Conn. 786 (2014) (" [T]o our knowledge, no Connecticut court has held that a fiduciary bears the burden of proving fair dealing, or that the elements of fraudulent concealment are not met, when faced with an allegation of fraudulent concealment" ); see also Hodges v. Glenholme Sch., supra, 713 Fed.Appx. 51 (" [Plaintiff] asserts that a different standard applies because the defendants allegedly owed her a fiduciary duty. This is incorrect" ). Accordingly, the plaintiffs retain the burden of proof to show by " clear, precise and unequivocal evidence" that defendants fraudulently concealed the facts of plaintiffs’ abuse by Dennis.
1. Actual Awareness of the Facts Supporting the Cause of Action
Defendants deny any knowledge of Dennis’s abuse of plaintiffs. As mentioned above, plaintiffs can point to no mention of Dennis in defendants’ records. Plaintiffs claim that the lack of any mention of Dennis in defendants’ records is a result of their poor record keeping. Pl. Br. at 12. Plaintiffs also state that they found evidence of a BSA investigation into an assistant scoutmaster, Blair Albrecht, in connection with morals charges and of an effort to cover this up. Id., at 14. Plaintiffs assert that these records were not produced to them in discovery, although they acknowledge that defendants advised them where to find them. Plaintiffs claim that these records " implicate Boy Scouts of America inexorably to the sexual abuse allegations directly relating to Donald Dennis. Blair Albrecht was Assistant Scout Master to Donald Dennis for many years. It was during these years that the Plaintiffs were sexually abused." Plaintiffs further point to the presence of other observers at some of the episodes of abuse and that many of the adult leaders knew that Dennis was regularly alone with various scouts. Id., at 18-19.
Plaintiffs claim that they need only demonstrate probable cause as to the defendants’ actual knowledge of Dennis’s abuse. This is incorrect and appears to be based on a mistaken reading of the decision in Macellaio v. Newington Police Department, 145 Conn.App. 426, 433 (2013), which cited the elements of fraudulent concealment and also the language quoted above from Falls Church, supra, regarding the necessity of proving fraudulent concealment by " the more exacting standard of clear, precise and unequivocal evidence." The Macellaio court then continued its summary of the Falls Church decision, " The issue, however, is not whether the plaintiff established fraudulent concealment but, rather, whether there was probable cause to believe that the test might be satisfied. Id. " The point being made in that passage is that, because Falls Church involved a claim of vexatious litigation, defendants would only need to prove probable cause that they could satisfy the higher standard of proof on the merits. The Macellaio court did not apply the probable cause standard to the motion for summary judgment, and affirmed the trial court’s grant of summary judgment as to fraudulent concealment for failure to demonstrate actual awareness of the facts relating to plaintiff’s claim. Id., 145 Conn.App. 434.
In summary, plaintiffs argue that awareness of Dennis’s abuse should be imputed to defendants by reason of their general awareness of pedophilia during the relevant period and by reason of the investigation of Albrecht. However, this approach is precisely contrary to the wording of Connecticut precedent, which requires a showing of " actual awareness, rather than imputed knowledge." Bartone v. Robert L. Day Co., 232 Conn. 527, 533 (1995). It is apparent that plaintiffs have made no showing of actual, rather than imputed, awareness on the part of defendants. Our courts have construed this requirement strictly and the absence of actual awareness of Dennis’s wrongdoing defeats their contention of fraudulent concealment. Doe v. Bogan, Superior Court, judicial district of New Britain, Docket No. CV12 5015682, at *2 (March 20, 2014, Abrams, J.) (no evidence that defendants possessed " actual awareness," statute of limitations not tolled); Roe v. St. Francis Hosp. & Med. Ctr., Inc., No. X 02 085008069S, at *2 (December 7, 2011, Shaban, J.) (2011 WL 6934767) (defendants’ initial failure to disclose documents responsive to a document request, imposition of sanctions, and withholding documents prior to filing the complaint insufficient to toll statute of limitations).
See Roe No. 1, supra, 147 Conn.App. 643 n.15 (" At oral argument on the defendants’ motion for summary judgment, the plaintiff argued that the defendants’ knowledge of [the perpetrator]’s sexual abuse was constructive and conceded that there is no evidence that the defendants had actual knowledge of it" ).
At oral argument, plaintiffs referred to the affidavit of Doe # 15, quoted at Paragraph 5, above, in which he states that he told his mother about the abuse and that several months later Dennis threatened him if he told anyone else. Doe # 15 says, " I know my mother told someone in BSA." This assertion, unsupported by facts, and dependent upon knowledge of, and actions by, unidentified persons, is speculative and insufficient to resist a motion for summary judgment in the face of defendants’ denial of knowledge of Dennis’s abusive activities. Roe No. 1 v. Boy Scouts of Am. Corp., supra, 147 Conn.App. 640 (2014) (" While the court must view the inferences to be drawn from the facts in the light most favorable to the party opposing the motion ... a party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment ..." ). Similarly, the assertion in some of the plaintiffs’ affidavits that unnamed BSA officials were present at some of the events, such as jamborees, where the events allegedly happened, does not constitute clear, precise and unequivocal evidence of defendants’ knowledge of Dennis’s abusive behavior. Gupta v. New Britain Gen. Hosp., 239 Conn. 574, 582 (1996) (" Merely alluding to disputed material facts, however, without providing substantiation, does not sufficiently establish those facts to preclude summary judgment" ).
2. Intentional Concealment of Facts from Plaintiff
Because there is no proof of defendants’ knowledge of Dennis’s activities, there is no evidence of defendants’ concealment or non-disclosure of them. Because plaintiffs allege a fiduciary relationship between defendants and the plaintiffs, they claim that a failure to disclose the facts relating to plaintiffs’ abuse satisfies the second element of the fraudulent concealment statute. Pl. Brief, at 21. However, as found above, plaintiffs have failed to establish any such duty. Further, even if they had done so, a fiduciary duty would not be sufficient to provide the missing predicate of defendants’ knowledge of Dennis’s abusive behavior.
3. Intentional Concealment for the Purpose of Obtaining a Delay in Filing a Complaint
Although plaintiffs have tendered evidence that the BSA concealed information about the extent of pedophilia in Scouting in the 1960s and 1970s, this does not satisfy the requirement of concealment or non-disclosure of " the facts necessary to establish plaintiffs’ cause of action" arising out of Dennis’s acts, or that the defendants were trying to delay the filing of plaintiffs’ complaints." Bartone, supra, 232 Conn. at 532.
4. Plaintiffs’ Knowledge of the Facts Supporting Their Claims
As mentioned above, an additional hurdle facing plaintiffs’ showing of fraudulent concealment is establishing that they were not aware of the facts underlying their claims prior to the expiration of the statute of limitations. The plaintiffs’ affidavits contain many references to their telling parents, friends and others about the abuse before plaintiffs turned forty-eight. For example, the citation to the affidavit of Doe # 5 is premised on his disclosure of the abuse to his mother. However, the court is unwilling to grant summary judgment on this basis against these various plaintiffs for two reasons: First, it is unnecessary, given the court’s finding that plaintiffs have failed to establish defendants’ fraudulent concealment sufficient to toll the statute of limitations. Second, the knowledge of the abuse, the extent and content of such knowledge, its disclosure to others, and the inherent uncertainty of recall of this kind of harm, necessarily presents questions of fact, which cannot be resolved satisfactorily on this record. Rosado v. Bridgeport Roman Catholic Diocese Corp., supra at *4 (finding a question of fact as to when plaintiffs became aware of facts of their claim).
These factors figured in the legislature’s extensions of the limitation period in Section 52-577d. " The legislative history of § 52-577d reveals that the legislature plainly recognized that ‘victims of abuse and exploitation may take an extended period of time to bring an action’ because such victims suppress memories of the abuse for long periods of time. Todd M. v. Richard L., 44 Conn.Supp. 527, 534, 696 A.2d 1063 (1995) (commenting on the legislative purpose behind the 1991 extension of the same statute of limitations from two to seventeen years). The legislature intended to extend the statute of limitations of § 52-577d to allow ‘plaintiffs sufficient time to recall the traumatic offenses.’ Id. " Doe v. Shimkus, Superior Court, judicial district of Hartford, Docket No. CV03 0822147 S, at *2 (March 19, 2004, Wagner, J.T.R.) (2004 WL 728855). See also, Doe v. BSA, 323 Conn. 303, 337-39 (2016).
Accordingly, the court grants defendants’ motion for summary judgment because, on the basis of the undisputed facts, plaintiffs have failed to demonstrate defendants’ fraudulent concealment of the facts supporting their claims.
* * *
Our Supreme Court in Iacurci v. Sax, supra, 313 Conn. 799-800, stated that " These statutes [of limitations] represent a legislative judgment about the balance of equities in a situation involving a tardy assertion of otherwise valid rights: [t]he theory is that, even if one has a just claim, it is unjust not to put the adversary on notice to defend within the period of limitation and that the right to be free of stale claims in time comes to prevail over the right to prosecute them." It would appear that a concern over the problems of recall and repression of traumatic memories of childhood sexual abuse caused the legislature to establish a particularly long limitation period in Section 52-577d. However, the period is finite, and these plaintiffs will not have their day in court to seek redress for their injuries. It is not this court’s role to second-guess the legislature, but rather to enforce the statute as written.
At least four states have entirely abolished the statute of limitations for claims arising out of childhood sexual abuse: Alaska; see Alaska Stat. § 09.10.065; Delaware; see Del. Code Title 10, § 8145; Maine; see Me. Rev. Stat. Ann. Title 14, § 752-C; Minnesota; see Minn. Stat. Ann. § 541.073 (except as to vicarious liability claims, which must be brought before plaintiff is twenty-four years of age); and Utah; see Utah Code Ann. § 78B-2-308 (except as to claims against " non-perpetrators," i.e., institutional defendants; see Stephenson v. Elison, 405 P.3d 733, 743 n.9 [Utah 2017], which are limited to four years from the date of majority or discovery, whichever is later).
Conclusion
There is no genuine dispute as to any material fact concerning the statute of limitations issues raised by the defendants’ motion. The movants have shown that they are entitled to judgment as a matter of law. Accordingly, the defendants’ motion for summary judgment is granted.