Knaus V Great Crossings Baptist Church Inc, Leagle, February 12, 2010

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	Knaus V. Great Crossings Baptist Church, Inc. Leagle February 12, 2010 http://www.leagle.com/unsecure/page.htm?shortname=inkyco20100212183 KENTUCKY -- WINE, JUDGE: Nicholas Knaus and his father Barry Knaus appeal from a judgment and order dismissing an action seeking damages from Great Crossings Baptist Church, Inc. for sexual abuse allegedly perpetrated by the church's youth minister during Nicholas Knaus's childhood. The motion to dismiss was granted on statute of limitations grounds. On appeal, the Knauses argue that there are genuine issues of material fact as to whether Great Crossings had knowledge of the youth minister's propensities toward sexual abuse, thus tolling the applicable statute of limitations. Upon a thorough review of the record, we affirm. History In early 2007, Nicholas Knaus and his father, Barry Knaus, filed an action against Great Crossings for actions taken by its youth minister, Shawn Davies, while Nicholas was a minor. The complaint alleged claims of sexual molestation, common law battery, failure to supervise, negligent hiring, failure to warn, loss of parental affection and society, intentional infliction of emotional distress, and damages. The actions giving rise to the complaint occurred in 1998 or 1999, during a time when Davies was employed as a youth minister by Great Crossings. Nicholas was a minor at the time of the alleged acts, but reached the age of majority on December 27, 2001. In early 2002, Nicholas revealed information about the abuse to his father, Barry. A report was made with local police. Following an investigation by police, Davies was indicted on May 18, 2005. On December 2, 2005, Davies pleaded guilty to one count of second-degree sodomy and two counts of unlawful transaction with a minor. At the time of this appeal, Davies was still incarcerated. The Knauses filed their complaint against Great Crossings on January 24, 2007. Thereafter, Great Crossings filed a motion to dismiss for failure to state a claim, averring, among other things, that the applicable statute of limitations had run. The motion was briefed for the court and was argued by the parties on September 6, 2007. On October 23, 2007, the trial court entered an order granting the Knauses four months' time in which to conduct discovery on whether Great Crossings had concealed knowledge of abuse or obstructed investigation of abuse claims pertaining to Davies (in order to determine whether the statute of limitations had been tolled). At the end of the four month discovery period, the court granted the Knauses an additional ninety days of discovery. During said time, the Knauses produced affidavits of Barry Knaus, Larry Atha (an attendee of Great Crossings Church), and Karla Atha (an attendee of Great Crossing Church). On December 22, 2008, the trial court granted Great Crossings' motion to dismiss on the ground that the statute of limitations had run. The trial court found that the evidence failed to demonstrate that anyone at Great Crossings either had knowledge of Davies' propensities or made any effort to obstruct any prosecution of Davies. The Knauses now appeal. On appeal, the Knauses contend that the affidavits establish a genuine issue of material fact concerning whether Great Crossings had knowledge of Davies' propensities and/or obstructed prosecution of the action, and that the applicable statute of limitations was thereby tolled. Standard of Review When ruling on a motion to dismiss under Kentucky Rule of Civil Procedure ("CR") 12.02, "a court should not dismiss for failure to state a claim unless the pleading party appears not to be entitled to relief under any state of facts which could be proved in support of his claim." Weller v. McCauley, 383 S.W.2d 356, 357 (Ky. 1964). A trial court is free to consider matters outside the pleadings when ruling upon such a motion. However, doing so converts the matter into a motion for summary judgment. See, McCray v. City of Lake Louisvilla, 332 S.W.2d 837, 840 (Ky. 1960) and Waddle v. Galen of Kentucky, Inc., 131 S.W.3d 361, 364 (Ky. App. 2004). As the trial court considered matters outside the pleadings when ruling upon the motion here, we will review the dismissal under the summary judgment standard. The standard on review of a summary judgment is "whether the trial court correctly found that there were no genuine issues as to any material fact and that the moving party was entitled to judgment as a matter of law." Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996). Statute of Limitations The parties disagreed on the applicable statutes of limitations for the allegations contained in the complaint. Great Crossings argued before the trial court that the five year period in Kentucky Revised Statute ("KRS") 413.249(2) should apply and that the complaint was not timely filed under that statute. The Knauses argued that the one year personal injury statute of limitations in KRS 413.140(1)(a) should apply, but that the running of the statute was tolled due to concealment and/or obstruction. The trial court agreed with the Knauses that KRS 413.140(1)(a) was the applicable statute of limitations. It held that KRS 413.249(2) was inapplicable, (although entitled "Action relating to childhood sexual abuse or childhood sexual assault") because the statute contains no indication that it is applicable to third parties (such as a church employer). We agree with the trial court that the action herein is based upon personal injury, and thus, is subject to the one-year limitations period under KRS 413.140(1)(a). Roman Catholic Diocese of Covington v. Secter, 966 S.W.2d 286 (Ky. App. 1998). We likewise find KRS 413.249(2) to be inapplicable, as our Courts have previously held that this statute does not apply to claims against third parties, but only to the perpetrator him or herself. Roman Catholic Bishop of Louisville v. Burden, 168 S.W.3d 414, 418 (Ky. App. 2004). As far more than one year has elapsed since the occurrence of the acts giving rise to the Knauses' claims, we must address the running and tolling of the statute. Tolling of the Statute The applicable statue of limitations, KRS 413.140(1)(a), would ordinarily begin to run from the date of injury. However, in the present case, as Nicholas was a minor when the injuries occurred, the statute was tolled until his eighteenth birthday. KRS 413.170. Absent further tolling of the statute, the limitations period would have ended one year after his eighteenth birthday. However, the Knauses argue that the limitations period did not expire on this date, but rather, continued to be tolled under the provisions of KRS 413.190(2), which states: When a cause of action mentioned in KRS 413.090 to 413.160 accrues against a resident of this state, and he by absconding or concealing himself or by any other indirect means obstructs the prosecution of the action, the time of the continuance of the absence from the state or obstruction shall not be computed as any part of the period within which the action shall be commenced. But this saving shall not prevent the limitation from operating in favor of any other person not so acting, whether he is a necessary party to the action or not. The Knauses claim that the limitations period was tolled because Great Crossings either concealed or obstructed prosecution of the action by concealing knowledge of Davies' propensities for sexual abuse. They further claim that the three affidavits produced at the end of the discovery period provided evidence of such concealment. We disagree. As the trial court correctly pointed out, the affidavits fail to show that anyone at Great Crossings had knowledge or reason to believe that Davies had behaved inappropriately with the church's youth or that he had any propensities to sexually abuse the youth. The Athas' affidavits only purport to convey that Barry Knaus told Larry and Karla Atha that he felt there was a problem with the way Davies was interacting with Nicholas. Further, Karla Atha's affidavit makes a vague assertion that she believed that a Great Crossing's member was aware of "problems" with Davies. Finally, Barry Knaus's affidavit states that he approached church's minister 1999 and indicated that he believed "something strange" was going on with Davies. In Secter, supra, this Court found that the limitations period was tolled where evidence showed that the church had received reports of sexual abuse and concealed them and had further maintained files documenting the reports of abuse. There is no such evidence in this case. Although the Knauses argue that it is a jury question whether Great Crossings had prior knowledge of the abuse, it cannot become a jury question when the information provided could not be reasonably construed so as to allow the jury to infer knowledge. See, e.g., Wiser Oil Co. v. Conley, 380 S.W.2d 217, 219 (Ky. 1964) (holding that a jury "may not be permitted to reach a verdict upon speculation or conjecture," and that a directed verdict is proper in such circumstance). The affidavits here provide no information, even when taken in a light most favorable to the Knauses, which would allow this Court or a jury to find that Great Crossings had any knowledge of the abuse. Further, even if this court were to have found a period of tolling due to concealment or obstruction, the limitations period would still have run before the commencement of this action. Indeed, since Davies was indicted on May 18, 2005, and convicted on December 2, 2005, any concealment and/or obstruction would no longer have been relevant after this time for the purposes of tolling (as the abuse was no longer "concealed"). See, e.g., McGill's Adm'x v. Phillips, 243 Ky. 768, 49 S.W.2d 1025, 1027 (1932). The Knauses did not file their complaint until January 24, 2007, nearly five years after they first reported the abuse to police and nearly two years after Davies was convicted for same. Conclusion In conclusion, we hold that the period of limitations set forth in KRS KRS 413.140(1)(a) began to run on December 27, 2001 — the date of Nicholas's eighteenth birthday. We further hold that the running of the statute was not tolled due to concealment or obstruction under KRS 413.190(2). As such, the trial court properly found the present action barred by the one year statute of limitations. Accordingly, the judgment and order of the Scott Circuit Court is hereby affirmed. ALL CONCUR.

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