New BSA/Church Lawsuit Re: Abuse

[Scott Lloyd]

On 1/12/2023 at 12:45 PM, smac97 said:

From the Trib: New sex abuse lawsuit targets LDS Church, Utah Boy Scout council

A few preliminary thoughts/observations:

1. The allegations of abuse and negative consequences to the individual are vague, but were likely pretty terrible.  Abuse of children can have awful consequences.  

2. The allegations are fairly vague: "{I}n or around 2009, was a victim of one or more criminal sex acts of the State of Utah, by a scout leader and/or youth scout leader, when said abuser was under the supervision, control and/or authority of Defendants; and said abuse having occurred in the State of Utah."

3. This case is filed in state court in Utah, not federal.  And it only asserts state law claims, which means that state law will be applied.

4. The named defendants are "Crossroads of the West Council," "Boy Scouts of America," the Church, and "John Does 1-10."  No individual person is named.  I think the inclusion of the BSA was an error, as they are in bankruptcy and cannot be sued.  So the BSA either has been or will be dismissed, leaving only the local "Crossroads" entity and the Church as named defendants.

5. The asserted claims, based on Utah state law, are for "Negligence," "Negligent Hiring, Retention, Supervision and/or Direction," "Intentional Infliction of Emotional Distress," "Negligent Infliction of Emotional Distress," and "Punitive Damages."  I don't think there is such a thing as a "cause of action" for "punitive damages," which is instead a remedy.  So I see that claim as DOA.

6. The statute of limitations for the negligence and emotional distress claims is four years.  In other words, these claims are theoretically barred as being outside the statute of limitations, since they were filed in late 2022, considerably more than four years after the alleged 2009 abuse.  

7. As noted above, the alleged abuse took place "in or around 2009."  There is no allegation that the abuse continued past 2009.  This may become important in terms of applying the statute of limitations.

8. Normally the statute of limitations ("SOL") would have ended within four years of the incident (in 2009), which would likely be December 2013 at the latest.  However, there is a "savings statute," Utah Code sec. 78B-2-308, which may affect the calculation of the limitations period, and which states:

9. It appears the plaintiff would be suing the Church under 3(b), meaning the limitations period ends/ended either "within four years after the individual attains the age of 18 years" or else after "four years after discovery of the sexual abuse."

10. Regarding the application of part (3)(b)(i) of the above savings statute, if the plaintiff was in Scouts in 2009, he would have been at least 12 at that point, meaning he would have turned 18 by December 2015.  If part (3)(b)(i) applies, the deadline for him to file suit would have been, at the latest, December 2019 ("four years after the individual attains the age of 18 years")  This lawsuit was filed about three years after that deadline, in late December 2022.  In other words, if part (3)(b)(i) applies, the lawsuit will almost certainly be dismissed, either now or in the near future.

11. Part (3)(b)(i)(ii) is actually not that different from part (3)(b)(i), as both use "the age of 18 years" as the commencement date for the limitations period.  The only difference is that part (3)(b)(i)(ii) allows an even longer limitations period based on "discovery of the sexual abuse."  In a 2004 case, Savage v. Utah Youth Village, 2004 UT 102, 104 P.3d 1242 (Utah 2004), the Utah Supreme Court held that a nearly identical statute in effect at the time (the wording is exactly the same as in part (3)(b)(i)) "applies only to extend the time for filing child sexual abuse claims where victims have repressed memories," and that it "only applies to victims of child sexual abuse with repressed memories." 

12. The Complaint does not include any allegations regarding "repressed memories."

13. Notwithstanding point #11 above, the foregoing statute may not apply at all to the Church (or to the "Crossroads" entity) because they are not "living entities."  Part (6) of the above statute states:

Note the language about "a living individual."  It appears that the term "nonperpetrator" as used in part (3)(b) of the statute cannot be used against legal entities that are not "living individual{s}," such as the Church and the Crossroads entity.  The Tenth Circuit, in Gerson v. Logan River Acad., 11 F.4th 1195 (10th Cir. 2021), interpreted part (3)(b)(i) as applying to suits against nonperpetrators "until the later of the victims’ 22nd birthdays or four years after their discoveries of their psychological injuries," but then proceeded to apply part (6) above, stating that it means that the statute in its entirety "applies only to suits against living persons," and that "{n}onliving entities, such as Logan River {the named defendant, a residential treatment facility}, "were instead subject to Utah's default four-year limitations period and a tolling provision for claims arising before a plaintiff reaches the age of majority" (emphasis in the original).

14. If the foregoing interpretation and application by the Tenth Circuit of the statute is correct (and I think it is), then the entire lawsuit may be immediately dismissed as being barred by the applicable statute of limitations.  

15. The foregoing legal analysis has little to say about the real-world ramifications of abuse.  I am grateful that both the Church and society in general have become attentive to this issue, and I hope that we can take steps to avoid as many instances of abuse as we can.

Thanks,

-Smac

 

The Crossroads of the West Council was not created until 2020. I think that was after the Church had severed its relationship with Scouting. Does that have a bearing?

[Tacenda]

On 1/12/2023 at 7:08 PM, MustardSeed said:

You’re apparently one of the fortunates who haven’t been sexually traumatized.  It’s legit- there are plenty of reasons that reporting is delayed. 

True, I regret at my young age of 11 that I didn't tell adults what I saw happen to my friends by an older man that would hand out candy to kids that walked home after school. He sexually abused them, I had run home and was afraid. I relive it in my mind and wonder why I wouldn't have yelled at him through the door and gotten my friends away from him. It haunts me to this day. I wish that it was taught to me to always tell someone when this happens. I'm 61 so it wasn't really out in the open and freely talked about like it is today.

[Calm]

On 1/13/2023 at 2:53 PM, smac97 said:

Pfau said his firm has 63 active claims against the LDS Church across the country — 31 of them lawsuits.

What would be the other 32?  Cases they haven’t decided yet whether to sue or not?  Or something else?

[smac97]

4 hours ago, Calm said:

Quote

Pfau said his firm has 63 active claims against the LDS Church across the country — 31 of them lawsuits.

What would be the other 32?  Cases they haven’t decided yet whether to sue or not?  Or something else?

I suspect the other 32 are as-yet-to-be-resolved demands for payment.  I suspect the Church either has insurance that covers these sorts of claims, or else is self-insured.  Either way, a demand letter from a law firm is a pretty standard precursor to actually filing a lawsuit.  If the parties can settle without any sort of litigation, so much the better.

I suspect Pfau's law firm has these 63 claims on contingency, meaning the claimants don't need to pay anything in attorney fees, and the attorneys get paid a portion (typically 33%) of any settlement amounts.  So settling before trial (or even before commencing litigation) becomes advantageous to the law firm (litigation involves more work, more risk, etc.).

Thanks,

-Smac

Edited January 18, 2023 by smac97

[Kenngo1969]

8 hours ago, Scott Lloyd said:

The Crossroads of the West Council was not created until 2020. I think that was after the Church had severed its relationship with Scouting. Does that have a bearing?

I'll take a crack at this: I don't have a license (so, "Shhhhh!" ) but, what the heck?  I suspect Plaintiffs would argue that the Crossroads of the West Council is "in privity" with the Great Salt Lake Council (or whatever council preceded it), meaning that whatever liability Great Salt Lake Council incurred (or did not incur), essentially was "transferred" (my term) from the latter to the former.  I welcome correction from those who are more erudite than I, legally speaking, but one rationale for the concept of privity is to prevent subsequent entities from escaping liability simply because a new entity was formed.

X Entity is formed; X Entity ceases operation as X, but resumes operation as Y Entity.  Privity enables would-be Plaintiffs to seek to hold Y Entity liable, still, even though, technically, it was X Entity rather than Y Entity that engaged in the alleged wrongdoing.

[smac97]

13 hours ago, Scott Lloyd said:

The Crossroads of the West Council was not created until 2020. I think that was after the Church had severed its relationship with Scouting. Does that have a bearing?

I'm not sure.  It very well could made a difference.  If it is a distinct entity, it could be difficult to attribute liability to it.  

Thanks,

-Smac

[Scott Lloyd]

19 hours ago, smac97 said:

I suspect the other 32 are as-yet-to-be-resolved demands for payment.  I suspect the Church either has insurance that covers these sorts of claims, or else is self-insured.  Either way, a demand letter from a law firm is a pretty standard precursor to actually filing a lawsuit.  If the parties can settle without any sort of litigation, so much the better.

I suspect Pfau's law firm has these 63 claims on contingency, meaning the claimants don't need to pay anything in attorney fees, and the attorneys get paid a portion (typically 33%) of any settlement amounts.  So settling before trial (or even before commencing litigation) becomes advantageous to the law firm (litigation involves more work, more risk, etc.).

Thanks,

-Smac

Even when a case is taken on contingency, the court costs alone can be a disincentive to pursue litigation. 

[Kenngo1969]

2 hours ago, Scott Lloyd said:

Even when a case is taken on contingency, the court costs alone can be a disincentive to pursue litigation. 

That's true.  I doubt very many contingency cases are taken on "a roll of the dice"!

[Tacenda]

https://www.fox13now.com/news/local-news/2-3b-awarded-in-sex-abuse-lawsuit-that-named-lds-church?dicbo=v2-6mucc0i

I guess the church needs it's billions available for cases like this. Hopefully they will shut it all down and report to the police and let them figure it out, wow. 

[Calm]

10 minutes ago, Tacenda said:

https://www.fox13now.com/news/local-news/2-3b-awarded-in-sex-abuse-lawsuit-that-named-lds-church?dicbo=v2-6mucc0i

I guess the church needs its billions available for cases like this. Hopefully they will shut it all down and report to the police and let them figure it out, wow. 

Fox13 worded the headline and article very carefully to implicate the Church, but both the Church ($1,000,000)and the mother ($200,000) had already settled without admitting guilt iirc and it is solely the stepfather who has to pay.  Needless to say, the plaintiff does not expect to get the whole amount given the defendant works at a trophy shop (might not work there any longer once this came out) and is 70 years old.  The daughter reported it to the bishop and he met with the family one year before the hotline was set up. 

Edited May 3, 2023 by Calm

[bluebell]

2 minutes ago, Tacenda said:

https://www.fox13now.com/news/local-news/2-3b-awarded-in-sex-abuse-lawsuit-that-named-lds-church?dicbo=v2-6mucc0i

I guess the church needs it's billions available for cases like this. Hopefully they will shut it all down and report to the police and let them figure it out, wow. 

I think there is a reckoning coming for how people and organizations handled sexual abuse and accusations over the past few decades.  Our church included.

This reckoning is probably going to be painful and expensive, but it needs to happen.  

[Tacenda]

8 minutes ago, Calm said:

Fox13 worded the headline and article very carefully to implicate the Church, but both the Church and the mother had already settled and it is solely the stepfather who has to pay.  Needless to say, the plaintiff does not expect to get the whole amount given the defendant works at a trophy shop (might not work there any longer once this came out) and is 70 years old.  The daughter reported it to the bishop and he met with the family one year before the hotline was set up. 

Thanks for your info, I guess I jump the gun, but do think the church would do well to for now on, let the law take over. I do get that there's the repentance process but in order for that to happen is to pay for what they've done. 

Edited May 3, 2023 by Tacenda

[Calm]

Tacenda, that lawsuit was discussed here in case you are interested:

https://www.mormondialogue.org/topic/75271-jury-awards-riverside-woman-23-billion-in-a-sex-abuse-lawsuit-involving-the-mormon-church/#comment-1210146339

 

[Tacenda]

2 minutes ago, Calm said:

Tacenda, that lawsuit was discussed here in case you are interested:

https://www.mormondialogue.org/topic/75271-jury-awards-riverside-woman-23-billion-in-a-sex-abuse-lawsuit-involving-the-mormon-church/#comment-1210146339

 

Thanks! I knew I had seen it. 

Edited May 3, 2023 by Tacenda

[Calm]

3 minutes ago, Tacenda said:

Thanks for you research, I guess I jump the gun, but do think the church would do well to for now on, let the law take over. I do get that there's the repentance process but in order for that to happen is to pay for what they've done. 

My understanding is that the guidance is the Church does instruct reports to be made to law enforcement except in the case of the abuser being the one confessing and then clergy confidentiality depends on the law.  I believe the Church has argued to allow this confidentiality in order to encourage abusers to confess and seek help.

The Church got sued by the wife of an abuser who the bishop convinced to turn himself in.  My guess is that lawsuit isn’t going anywhere, but it shows imo there will never be a way out of a situation like this where everyone is happy about what is done by church leaders except in rare cases.  But that is understandable if people are expecting the Church to somehow make a horrible situation they did not create better.

Edited May 3, 2023 by Calm