§42.12 Repressed Memory

The Case: Hunter v. Brown , 955 S.W.2d 49 (Tenn. 1997).

The Basic Facts: Plaintiff was moved to the foster home of Defendant and his wife. Shortly thereafter, Defendant molested and impregnated Plaintiff, who subsequently had an abortion. Plaintiff filed suit against Defendant approximately ten years later.

The Bottom Line:

• "In this action for damages, the plaintiff, Regina Darlene Hunter, alleged that as a child she was sexually abused by the defendant, Ed Brown, Jr., but was unable to file this action prior to 1993 because she repressed the memory of the abuse. The trial court found no reason to toll the statute of limitations and granted the defendant's motion for summary judgment. The Court of Appeals affirmed." 955 S.W.2d at 49.
• "Under the discovery rule, the cause of action accrues and the statute of limitations begins to run when the injury is discovered, or in the exercise of due care and diligence, the plaintiff discovers that he or she has a right of action. Potts v. Celotex Corp., 796 S.W.2d 678, 680 (Tenn. 1990); McCroskey, 524 S.W.2d at 491. The discovery rule applies only 'in cases where the plaintiff does not discover and reasonably could not be expected to discover that [she] had a right of action.' Potts, 796 S.W.2d at 680. Further, the limitations period is tolled only during the period when the plaintiff has no knowledge at all that a wrong has occurred and, as a reasonable person, was not put on inquiry. Potts, 796 S.W.2d at 680-81; Hoffman v. Hospital Affiliates, Inc., 652 S.W.2d 341, 344 (Tenn. 1983)." Id. at 51.
• "Hunter insists that she did not discover her injury nor could she reasonably have discovered it until July 1992, the time of the second abortion. However, it is not disputed that Hunter retained her memory of the events in 1982 for some period of time because she reported the abuse to her social worker who took her to speak to the district attorney general. Although no prosecution ever followed, clearly Hunter knew she had been injured and knew the identity of the perpetrator. The discovery rule simply delays the accrual of the cause of action until the plaintiff is aware of the injury. Hunter was aware of the injury and the wrong, at the very latest, when she had the abortion in 1982. Therefore, the facts in this case do not fairly raise the issue of repressed memory. We hold until another day the applicability of this theory to cases of sexual abuse." Id.

Other Sources of Note: See Therapists Sexual Misconduct Victims Compensation Act, Tenn. Code Ann. § 29-26-201, et seq.; Roe v. Jefferson, 875 S.W.2d 653 (Tenn. 1994) (court ruled that the statute of limitations had expired and expressed reservation about the plaintiff's attempt to use the transference phenomenon to extend the time for filing suit); Clifton v. Bass, 908 S.W.2d 205 (Tenn. Ct. App. 1995) (plaintiff's claim against therapist held to be time-barred). The Legislature adopted a different statute of limitations for claims against therapists for sexual misconduct; Doe v. Coffee County Board of Education, 852 S.W.2d 899 (Tenn. Ct. App. 1992), perm. appeal denied, (May 3, 1993) (discussing repressed memory in child sexual abuse case).