THE STATE OF SOUTH CAROLINA
In The Supreme Court
Amy Ferrell Moriarty, Respondent,
Church of God, Petitioner.
ON WRIT OF CERTIORARI TO THE COURT OF
Appeal From York County
John C. Hayes, III, Circuit Court Judge
Opinion No. 25156
Heard May 9, 2000 - Filed June 26, 2000
David B. Betts of Columbia and Frank A. Hirsch, Jr.
of Charlotte, N.C., for petitioner.
Gregg E. Meyers of Charleston for respondent.
JUSTICE WALLER: This case presents the novel issues of
whether a cause of action based on repressed memory syndrome is viable in
South Carolina, and whether an adult who alleges she repressed memories of
childhood sexual abuse may bring a timely cause of action under the "discovery
rule" contained in S.C. Code Ann. § 15-3-535 (Supp. 1999) after recovering the
Amy Ferrell Moriarty sued Garden Sanctuary Church of God (the
Church) to recover damages for sexual abuse she allegedly suffered as a young
child at a day care center operated by the Church. The circuit court granted the
Church's motion for summary judgment, ruling the action was time-barred
pursuant to S.C. Code Ann. § 15-3-40 (1976) and Doe v. R.D., 308 S.C. 139, 417
S.E.2d 541 (1992). The Court of Appeals reversed. Moriarty v. Garden Sanctuary
Church of God, 334 S.C. 150, 511 S.E.2d 699 (Ct. App. 1999). We
granted the Church's petition for a writ of certiorari to review that decision and
We will briefly outline the facts, which are set forth more fully in
the Court of Appeals' opinion. Moriarty was born August 26, 1971. She
attended the Church's Kiddie Kollege Day Care Center from August 1973, when
she was two years old, until May 1976, when she was about 41/z years old.
During that period, Moriarty became stubborn and unhappy. She experienced
night terrors and grew apprehensive about attending day care. A pediatrician,
who was unaware of anything unusual happening at the day care center, told
Moriarty's mother not to worry about it.
Moriarty continued to have emotional problems and teachers told
her mother that Moriarty did not work up to her potential. She received mental
health counseling during her school years. In 1992, Moriarty sought mental
health counseling again after she began obsessively counting numbers in her
head. She became depressed, missed her nursing classes, slept excessively, and
began taking Prozac.
After studying masturbation in her nursing classes, she became
obsessed it was abnormal. Her studies and counseling apparently triggered her
recovery of the repressed memories. She began to see pictures in her mind of
a little girl's hand masturbating a male and in late November 1992, she
recognized the hand as her own. Moriarty remembered wearing a particular
yellow dress during an episode of abuse, and an old family film not viewed in
years showed her wearing that dress. Moriarty recalled particular physical
characteristics of the abuser: crooked teeth, bushy eyebrows, and frizzy hair.
She visited each of the locations where she had attended day care and had a
"strong reaction" to Kiddie Kollege. Upon review of a series of photographs, she
had a "strong reaction" to a picture of one individual who had bushy eyebrows
and frizzy hair. Moriarty recalled her abuser used a particular name to refer
to his penis. She further remembered her abuser warning her that if she told
about the abuse she would be "overtaken by the devil." Moriarty alleged the
abuser removed her from supervised rest periods to perform the abusive acts.
The complaint that Moriarty, then twenty-six years old, filed in
November 1995 alleged causes of action for negligent infliction of severe
emotional distress, invasion of privacy, negligent supervision, and breach of
warranty. Moriarty contended she had sued the Church within three years of
recovering specific memories of the alleged abuse in late 1992 and 1993, and her
lawsuit was timely under the discovery rule contained in S.C. Code Ann. § 15-3
535 (Supp. 1999). 1
The Church argued the action accrued, if at all, not later than May
1976. Therefore, Moriarty's action was time-barred because she failed to
commence it within one year of her twenty-first birthday or not later than
August 26, 1993. See S.C. Code Ann. § 15-3-40 (1976). 2 The Church further
argued the statute of limitations was not tolled under section 15-3-535.
The Court of Appeals rejected the Church's position and reversed
the grant of summary judgment to the Church.
We affirm without extensive discussion the Court of Appeals'
Except as to actions initiated under Section 15-3-545, all actions
initiated under Section 15-3-530(5) must be commenced within
three years after the person knew or by the exercise of reasonable
diligence should have known that he had a cause of action.
2 The reduction in the age of majority from twenty-one to eighteen took
effect July 2, 1976, about two months after Moriarty stopped attending the
Church's day care center. Act No. 695, 1976 Acts 1886. Therefore, her case
would fall under the twenty-one-year provision.
holding that repressed memories of sexual abuse can exist and a plaintiff may
attempt to recover damages when those memories are triggered and
remembered. The condition is known as dissociative amnesia. A cause of action
based on such a theory is valid in South Carolina for the reasons set forth by
the Court of Appeals. Moriarty, 334 S.C. at 156-62, 511 S.E.2d at 702-05.
We will address in more detail the Court of Appeals' holdings
regarding the use of the discovery rule contained in S.C. Code Ann. § 15-3-535.
1. Did the Court of Appeals err in holding that a
plaintiff may assert the "discovery rule"
contained in S.C. Code Ann. § 15-3-535 in a case
involving repressed memory of sexual abuse?
2. Did the Court of Appeals err in holding that a
repressed memory plaintiff must provide
corroborating evidence of injury as a prerequisite
to application of the discovery rule?
3. If corroborating evidence is a prerequisite to
application of the discovery rule, did the Court of
Appeals err by permitting circumstantial
evidence to satisfy that prerequisite?
4. If corroborating evidence is a prerequisite to
application of the discovery rule, may application
of the rule and the existence of corroborating
evidence remain questions of fact for the jury?
STANDARD OF REVIEW
A trial court may properly grant a motion for summary judgment
when "the pleadings, depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any, show that there is no genuine issue
as to any material fact and that the moving party is entitled to a judgment as
a matter of law." Rule 56(c), SCRCP. Summary judgment is not appropriate
when further inquiry into the facts of the case is desirable to clarify the
application of the law. Tupper v. Dorchester County, 326 S.C. 318, 487 S.E.2d
187 (1997). Summary judgment should not be granted even when there is no
dispute as to evidentiary facts if there is dispute as to the conclusion to be
drawn from those facts. Id. In determining whether any triable issues of fact
exist, the court must view the evidence and all reasonable inferences that may
be drawn from the evidence in the light most favorable to the non-moving party.
Manning v. Quinn, 294 S.C. 383, 365 S.E.2d 24 (1988). An appellate court
reviews the granting of summary judgment under the same standard applied
by the trial court pursuant to Rule 56, SCRCP. Wells v. City of Lynchburg, 331
S.C. 296, 501 S.E.2d 746 (Ct. App. 1998).
We are free to decide questions of law - in this case whether South
Carolina recognizes a certain cause of action and whether the discovery rule
may apply when that cause of action is asserted - with no particular deference
to the lower court. See S.C. Const. art. V, §§ 5 and 9; S.C. Code Ann. §§ 14-3-
320 and -330 (1976 & Supp. 1999); S.C. Code Ann. § 14-8-200 (Supp. 1999)
(granting Supreme Court and Court of Appeals the jurisdiction to correct errors
of law in both law and equity actions); I'On v. Town of Mt. Pleasant, Op. No.
25048 (S.C. Sup. Ct. filed Jan. 17, 2000) (Shearouse Adv. Sh. No. 2 at 1).
1. APPLICATION OF DISCOVERY RULE
The Church contends the Court of Appeals erred in holding that the
"discovery rule may toll the statute of limitations during the period a victim
psychologically represses her memory of sexual abuse." Moriarty, 334 S.C. at
168, 511 S.E.2d at 709 (emphasis in original). 3 We disagree.
that statute as "tolling" the statute of limitations. The cases typically state that
the statute of limitations "begins to run" on the date the plaintiff either knew
or should have known through the exercise of reasonable diligence that she had
a cause of action. See, e.g., Roe v: Doe, 28 F.3d 404 (4th Cir. 1994); True v.
Monteith, 327 S.C. 116, 489 S.E.2d 615 (1997); Wiggins v. Edwards, 314 S.C.
126, 442 S.E.2d 169 (1994); Snell v. Columbia Gun Exchange, Inc., 276 S.C. 301,
278 S.E.2d 333 (1981); Dorman v. Campbell, 331 S.C. 179, 500 S.E.2d 786 (Ct.
A plaintiff must bring a personal injury action within three years
after the plaintiff knew or by the exercise of reasonable diligence should have
known that she had a cause of action. S.C. Code Ann. § 15-3-530(5) and -535
(Supp. 1999). "The exercise of reasonable diligence means simply that an
injured party must act with some promptness where the facts and
circumstances of an injury would put a person of common knowledge and
experience on notice that some right of his has been invaded or that some claim
against another party might exist. The statute of limitations begins to run from
App. 1998); Brown v. Pearson, 326 S.C. 409, 483 S.E.2d 477 (Ct. App. 1997); see
also Mills v. Killian, 273 S.C. 66, 254 S.E.2d 556 (1979) (concluding "the accrual
upon discovery rule represents the more equitable and rational view" in a case
that arose prior to the enactment of section 15-3-535). Section 15-3-535 does
not contain any express "tolling" provisions, unlike S.C. Code Ann. § 15-3-40,
which we have described as a "tolling statute." See Wiggins, supra (using
"begins to run" language when discussing section 15-3-535 and "tolling"
language when discussing section 15-3-40).
Moriarty could have brought her lawsuit under two other statutes of
limitation if she had done so in a timely manner: the six-year limit of S.C. Code
Ann. § 15-3-530(5) that was in effect in 1976 and the age of majority statute
contained in section 15-3-40. The time periods established in those statutes had
expired by the time Moriarty brought her lawsuit in 1995; therefore, one could
argue there was no statute of limitations to "toll," i.e., "to suspend or stop
temporarily." See Black's Law Dictionary 1488 (1990). On the other hand, one
could conclude, as the Court of Appeals apparently did, that the initial six-year
limit or age of majority statute was tolled by Moriarty's repression of the
Distinctions about whether another statute of limitations is "tolled" by
section 15-3-535 or whether a cause of action accrues upon discovery, thus
causing the limitations period to begin to run under section 15-3-535, appear
largely academic. Cf. Hearndon v. Graham, 710 So.2d 87, 90-92 (Fla. Ct. App.
1998). The ultimate question remains the same: May a plaintiff assert section
15-3-535 in a repressed memory case in order to maintain a timely cause of
action? However, for consistency's sake, we adhere to our analysis in previous
cases and avoid use of "tolling" language in discussing section 15-3-535.
this point and not when advice of counsel is sought or a full-blown theory of
recovery developed." Wiggins v. Edwards, 314 S.C. 126, 128, 442 S.E.2d 169,
170 (1994) (quoting Snell v. Columbia Gun Exchange Inc., 276 S.C. 301, 278
S.E.2d 333 (1981)).
"The important date under the discovery rule is the date that a
plaintiff discovers the injury, not the date of the discovery of the identity of [the]
wrongdoer." Wiggins, supra. However, under section 15-3-535, "the statute of
limitations is triggered not merely by knowledge of an injury but by knowledge
of facts, diligently acquired, sufficient to put an injured person on notice of the
existence of a cause of action against another." True v. Monteith, 327 S.C. 116,
118, 489 S.E.2d 615, 617 (1997).
Initially, we agree with the Church and the Court of Appeals that
the circuit court's reliance on Doe v. R.D., 308 S.C. 139, 417 S.E.2d 541(1992)
was misplaced. In Doe, the plaintiff was fully aware that he had been sexually
abused by his father from age six to sixteen. He filed a lawsuit against his
parents more than twenty years after the abuse ended and long past the age of
majority. The plaintiff argued the discovery rule should apply or the majority
statute of limitations should be tolled until he discovered the extent of his
injuries through a diagnosis of delayed stress syndrome.
We rejected those arguments, concluding only the Legislature may
create such an exception to the statutes of limitation. We noted, however, that
the plaintiff had not alleged he only recently discovered he was sexually abused
by his father, suggesting that might lead to different result. Id. at 141, 417
S.E.2d at 542.
We find Doe distinguishable because it was not a repressed memory
case. Moriarty, unlike the plaintiff in Doe, did not realize she had been injured
by sexual abuse until her studies and counseling allegedly caused her to recover
the repressed memories. It is not necessary to create any exception to the
statute of limitations in Moriarty's case. It is necessary only to apply the
discovery rule's requirement of reasonable diligence, as this Court and others
have done in various cases. See, e.g., Hinson v. Owens-Illinois Inc., 677 F.
Supp. 406 (D.S.C. 1987) (asbestos case); True, supra (legal malpractice action
by client); Ropers v. Efird's Exterminating Co., 284 S.C. 377, 325 S.E.2d 541
(1985) (action by homeowner against termite extermination company); Brown
v. Pearson, 326 S.C. 409, 483 S.E.2d 477 (Ct. App. 1997) (sexual harassment
action by church members against pastor).
Similarly, we conclude the view expressed in Roe v. Doe, 28 F.3d
404 (4th Cir. 1994) is neither dispositive nor at odds with application of the
discovery rule in this case. In Roe, the plaintiff discovered her injury by
gradually recovering memories of sexual abuse that she had repressed since the
age of four or five. The Fourth Circuit Court of Appeals, applying the discovery
rule in an objective fashion, concluded the plaintiff sufficiently had regained her
memory to discover the injury no later than May 4,1989. Thus the lawsuit she
filed May 5, 1992, did not comply with the three-year limit contained in S.C.
Code Ann. § 15-3-535.
Roe stands for the proposition that a repressed memory plaintiff -
like plaintiffs seeking to use the discovery rule in other cases - must bring her
action within the required period after the date a reasonable person would have
regained sufficient memories to discover her injury. Unlike the plaintiff in Roe,
Moriarty filed her complaint within three years after allegedly discovering her
injury by remembering she had been abused at the Church's day care center.
Many states have applied the discovery rule by judicial decision or
by statute in childhood abuse cases in which memories allegedly were
repressed. See Doe v. Roe, 955 P.2d 951, 960 (Ariz. 1998) (listing cases);
Dalrymple v. Brown, 701 A.2d 164, 170 n.9 (Pa. 1997) (listing cases); S.V. v.
R.V., 933 S.W.2d 1, 20-22 (Tex. 1996) (listing cases and statutes); Moriarty, 334
S.C. 164-65, 511 S.E.2d at 707 (listing cases and statutes); Gregory G. Sarno,
Annotation, Emotional or Psychological "Blocking" or Repression as Tolling
Running of Statute of Limitations, 11 A.L.R. 5th 588 (1993); Annotation,
Posttraumatic Syndrome as Tolling Running of Statute of Limitations, 12
A.L.R.5th 546 (1993); Michael Krauss, Fundamental Fairness in Child Sexual
Abuse Cases, 8 Stan. L. & Pol'y Rev., 205 (1997). 4
of limitations containing a discovery rule for civil actions stemming from
childhood sexual abuse. H. 3927, 110th Leg., lst Sess. (S.C. 1993). The bill
would have required a plaintiff to bring an action for sexual abuse or incest
within ten years of becoming eighteen or "within four years from the time of
discovery by the person of the injury and the causal relationship between the
The Church contends the discovery rule should not apply because
repression is just another way of describing the normal process of forgetting,
and cites courts that have refused to apply the rule in repressed memory cases.
The Church relies on Doe v. Maskell, 679 A.2d 1087 (Md. 1996), in which the
Maryland Court of Appeals held that a court-created discovery rule did not
apply in a repressed memory case involving high school students sexually
abused by a school chaplain. The Maryland court explained that adversaries
of the concept believe no empirical evidence of repression exists, the
psychological community disagrees on the subject, and recovered memories can
be manipulated by therapists. The court concluded that repressing a memory
and forgetting it are indistinguishable scientifically and legally, and observed
the legislature could address the matter if it wished. Id. at 1091-92.
In our view, equating a repressed memory to merely "forgetting"
ignores advances in the understanding of the human mind. True, it is not a
precise science and many matters cannot be determined, for example, with the
certainty of an engineering problem or mathematical equation in a products
liability lawsuit. But the same can be said about many cases involving a "battle
of experts," which is why courts and legislatures have developed rules of
evidence and principles regarding the admissibility of scientific and technical
testimony. See State v. Council, 335 S.C. 1, 19-21, 515 S.E.2d 508, 517-18
(1999) (declining to adopt Daubert 5 analysis and explaining procedure trial
judge must use under South Carolina Rules of Evidence in deciding whether to
admit scientific evidence); Rules 702-705, SCRE; see also Kumho Tire Co., Ltd.
v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999) (holding
that a federal trial judge's gatekeeping obligation under the Federal Rules of
Evidence - to ensure that an expert witness' testimony rests on a reliable
foundation and is relevant to the task at hand - applies not only to testimony
based on scientific knowledge, but also to all expert testimony, including
technical and other specialized knowledge).
injury and the sexual abuse or incest, whichever occurs later." The bill would
not have required any corroborating evidence. The bill passed the House, but
died in the Senate Judiciary Committee.
5 Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct.
2786, 125 L.Ed.2d 469 (1993).
The Church contends that applying the discovery rule would defeat
the purpose of limitations statutes in this setting. Even a reasonable three- or
four-year-old would recognize such conduct as a battery and so should have only
until the age of majority plus one year to file an action, the Church argues. The
Church cites Lindabury v. Lindabury, 552 So.2d 1117 (Fla. Ct. App. 1989)
(incestuous acts damaged child when they occurred and action filed long after
reaching age of majority was time-barred) and Tyson v. Tyson, 727 P.2d 226
(Wash. 1986) (sharply divided court rejected application of the discovery rule in
a case of repressed memories of sexual abuse).
We reject the Church's argument. Instead, we find the views
expressed by the dissenters in Lindabury and Tyson, who would have applied
the discovery rule, more persuasive. The Lindabury dissenter explained that
repression appeared in the literature by the late 1800s and, even though it is
one of the many "gray areas" in the field of psychiatry, courts should not
mechanically apply the statute of limitations in such cases. Id. at 1118-21. A
more recent Florida Court of Appeals from another district criticized Lindabury,
explaining that the majority of courts have applied the discovery rule in
repressed memory cases. Hearndon v. Graham, 710 So.2d 87 (Fla. Ct. App.
1998). The Washington legislature nullified Tyson by enacting a discovery rule
in such cases, and the Tyson majority opinion has not been followed by most
courts. See Wash. Rev. Code § 4.16.340 (1999).
Our Court of Appeals and the numerous commentators it cites
explain that young children may sense something wrong has occurred when
they are molested. But they are neither mentally nor emotionally prepared to
deal with it and so may repress the memory for years. Although there is no
clear consensus among the psychological, medical, or legal communities about
repressed memory syndrome, we do not believe the law should expect a 41/2
year-old child to recognize an "offensive touching," such that the child should
always be bound by the majority statute of limitations.
We reject the Church's argument that the Court of Appeals
established a discovery rule that will be applied in a subjective fashion. That
court flatly stated that "[a]pplication of the discovery rule is an objective
determination . . . [and] [t]he focus is upon the date of discovery of the injury,
not the date of discovery of the wrongdoer." Moriarty, 334 S.C. at 163, 511
S.E.2d at 706 (citing Wiggins, supra). The discovery rule will apply in
Moriarty's case if she can prove to the jury that a person of common knowledge
and experience would not have been put on notice that she had a claim against
the Church until late 1992 and 1993. She will have to establish the fact of her
repressed memories by expert testimony because the matter lies outside the
expertise of the lay person. Id. at 171-73, 511 S.E.2d at 710-11.
The rule under the Court of Appeals' opinion is not whether
Moriarty herself was on notice by a certain date (a subjective standard), but
whether a reasonable person in her circumstances would have been on notice
by a certain date (an objective standard). The statute begins to run on the date
that the jury believed the repression ended and the resurfacing memories would
have put a reasonable person on sufficient notice.
In sum, the discovery rule exists to avoid the harsh and unjust
result of closing the courtroom doors to a plaintiff whose "blameless ignorance"
resulted in a failure to pursue a cause of action within the limitations period.
See Urie v. Thompson, 337 U.S. 163, 170, 69 S.Ct. 1018, 1025, 93 L.Ed. 1282,
1292 (1949). The limitations period is intended to run against those who are
neglectful of their rights and who fail to exercise reasonable diligence in
enforcing their rights. However, it is not the policy of the law to unjustly
deprive an injured person of a remedy. See Wiggins, supra; True, supra.
An analogy offered by another court applying the discovery rule in
a case similar to Moriarty's is enlightening:
The present case might profitably be compared with a
hypothetical one. Suppose that the defendant threw
acid in a plaintiff s face and blinded her. As a result of
her blindness, which was caused by the defendant, the
plaintiff has become disabled from making an
identification, and no other evidence is available.
Twenty-five years later, however, a new procedure
restores the plaintiffs 20:20 eyesight. She identifies
the defendant as her assailant from a photograph
taken of the defendant on the day of the assault. To
apply the statute of limitations against the plaintiff in
such a case to defeat recovery would surely be
intolerable, for to do so would permit the assailant to
profit from his own wrong.
Farris v. Compton, 652 A.2d 49, 59 (D.C. 1994).
Accordingly, we affirm the Court of Appeals and hold that a plaintiff
may assert the discovery rule contained in S.C. Code Ann. § 15-3-535 in a case
involving repressed memories of sexual abuse.
2. CORROBORATING EVIDENCE
The Court of Appeals, recognizing the "horrific possibility of false
accusations," held that a plaintiff must present independently verifiable,
objective evidence that corroborates a repressed memory claim in order to assert
the discovery rule contained in S.C. Code Ann. § 15-3-535. That court further
held that expert testimony is required to prove both the abuse and the
repressed memory. Moriarty, 334 S.C. at 168-73, 511 S.E.2d at 709-11. The
Church urges the Court to embrace the requirement of corroborating evidence.
Courts that have not required corroborating evidence reason that
a repressed memory case is no different than any other "swearing contest" or
"battle of experts." A plaintiff in a repressed memory case will bear a
substantial burden of proving a case at trial under the controversial theory, and
it is not necessary for the court to impose a higher burden in applying the
discovery rule or on the merits. See McCollum v. D'Arcy, 638 A.2d 797, 799
(N.H. 1994) (rejecting requirement of corroborating evidence because it is not
required in other discovery rule cases and legislature may impose it if it
wishes); Logerquist v. Danforth, 932 P.2d 281 (Ariz. Ct. App. 1996) (stating
most courts in applying discovery rule in repressed memory case have not
required corroboration; plaintiff must still prove her case and application of
discovery rule and whether abuse occurred are questions of fact for jury);
Phillips v. Johnson, 599 N.E.2d 4, 7 (Ill: App. Ct. 1992) (concluding trial court
improperly considered the reliability of plaintiffs anticipated evidence in
dismissing repressed memory complaint because plaintiff had offered no
"verifiable" evidence; psychological evidence is generally admissible, assuming
that relevancy and foundational requirements are met, and determination of
credibility and weight are matters for jury).
We recognize that we never have required corroborating evidence
in applying the discovery rule in any other setting. We also recognize that of
at least twenty-four states adopting statutes since the late 1980s expressly
allowing use of the discovery rule in actions by adult survivors of child abuse,
only two have imposed any special requirements. See Cal. Civ. Proc. Code §
340.1 (Supp. 2000) (requiring attorney to file "certificate of merit" that he has
consulted with at least one licensed mental health practitioner who believes the
claim has merit; certificate must be approved by court before a complaint may
be served on defendant); Okla. Stat. Ann. tit. 12, § 95(6) (1999) (requiring
plaintiff to present objective verifiable evidence, which should include both
proof that victim had psychologically repressed memory of the facts upon which
the claim was predicated and corroborating evidence that sexual abuse actually
occurred); see also S.V., 933 SW.2d at 21-22 (suggesting that second generation
of discovery rule statutes in child sexual abuse cases is likely to require
Nevertheless, we agree with the Court of Appeals that requiring
corroborating evidence appropriately balances the plaintiffs interest in
pursuing a valid claim and the defendant's interest in being able to defend a
stale or false claim. The primary reasons other courts have imposed the
requirement are the disagreement among the psychological and medical
communities about the validity of repressed memory syndrome, the danger a
plaintiff s memories could be faked or implanted during therapy, and the desire
that a plaintiff not have the ability to control the running of the statute of
limitations solely by allegations whose only support is contained within the
plaintiff's mind. See Roe v. Doe, 28 F.3d at 408-09 (suggesting that
corroborative evidence of abuse and repressed memory should be required)
(Hall, J., concurring); Olsen v. Hooley, 865 P.2d 1345, 1349-50 (Utah 1993)
(requiring corroborating evidence because of concerns about the reliability of
memory in general and revived memories in particular, and the difficulty of
defending against claims of revived memories of sexual abuse long past); S.V.,
933 S.W. 2d at 7-15 (discovery rule applies in repressed memory case only when
claim is "inherently undiscoverable" and "objectively verifiable" through
corroborating evidence; court assumed plaintiffs injury was inherently
undiscoverable, but rejected application of discovery rule because she offered no
We find the reasoning of these courts persuasive. Accordingly, we
affirm the Court of Appeals and hold that a plaintiff must present
independently verifiable, objective evidence that corroborates a repressed
memory claim in order to assert the discovery rule contained in S.C. Code Ann.
§ 15-3-535. We further hold that expert testimony is required to prove both the
abuse and the repressed memory.
3. USE OF CIRCUMSTANTIAL EVIDENCE TO CORROBORATE CLAIM
The Court of Appeals held that the element of "objective
verifiability" may be satisfied by corroborating evidence such as (1) an
admission by the abuser; (2) a criminal conviction; (3) documented medical
history of childhood sexual abuse; (4) contemporaneous records or written
statements of the abuser, such as diaries or letters; (5) photographs or
recordings of the abuse; (6) an objective eyewitness's account; (7) evidence the
abuser had sexually abused others; or (8) proof of a chain of facts and
circumstances having sufficient probative force to produce a reasonable and
probable conclusion that sexual abuse occurred. Moriarty, 334 S.C. at 171, 511
S.E.2d at 710.
The Church urges the Court to strike the eighth category, arguing
its inclusion effectively nullifies the requirement of corroborating evidence. We
"Direct evidence is the testimony of a person who asserts or claims
to have actual knowledge of a fact, such as an eyewitness. Circumstantial
evidence is proof of a chain of facts and circumstances indicating the existence
of a fact." State v. Needs, 333 S.C. 134,156 n.13, 508 S.E.2d 857, 86 n.13 (1998)
(language drawn from jury instruction in criminal case). "The law makes
absolutely no distinction between the weight or value to be given to either direct
or circumstantial evidence." Id.
This Court has not distinguished between the two types of evidence
in numerous cases. See, e.g., Tiller v. Nat'l Health Care Center of Sumter, 334
S.C. 333, 341, 513 S.E.2d 843, 846 (1999) (proof that workers' compensation
claimant sustained an injury may be established by circumstantial or direct
evidence); Holtzscheiter v. Thomson Newspapers Inc., 332 S.C. 502, 513, 506
S.E.2d 497, 503 (1998) (directed verdict on liability in civil case is properly
denied when there is any evidence, direct or circumstantial, justifying
submission of issue to jury); State v. Kelsey, 331 S.C. 50, 62, 502 S.E.2d 63, 69
(1998) (in considering directed verdict motion in criminal case at trial and on
appeal, evidence must be viewed in light most favorable to State, and court
must find that the case was properly submitted to the jury when there is any
direct evidence or any substantial circumstantial evidence reasonably tending
to prove defendant's guilt); Waters v. South Carolina Land Resources
Conservation Comm'n, 321 S.C. 219, 226, 467 S.E.2d 913, 917 (1996) (fact that
geologist relied on circumstantial rather than direct evidence in forming his
conclusions goes to the weight of the evidence, and may be relied on by
administrative agency and court to support a finding of fact); Anders v. Anders,
285 S.C. 512, 515, 331 S.E.2d 340, 342 (1985) (either circumstantial or direct
evidence, or a combination of the two, may be sufficient to prove adultery as
grounds for a divorce); Mahaffey v. Ahl, 264 S.C. 241, 247, 214 S.E.2d 119, 122
(1975) (it is axiomatic in this State that issues of negligence and proximate
cause may be resolved by direct or circumstantial evidence); First Union Nat'l
Bank of South Carolina v. Soden, 333 S.C. 554, 575, 511 S.E.2d 372, 383 (Ct.
App. 1998) (tort of civil conspiracy may be shown by circumstantial as well as
direct evidence); Bilton v. Best Western Royal Motor Lodge, 282 S.C. 634, 642,
321 S.E.2d 63, 68 (Ct. App. 1984) (circumstantial evidence and inferences
drawn therefrom may be relied on to support a finding of fact of an
administrative agency). 6
We find no reason to draw a distinction between the use of direct or
circumstantial evidence in a repressed memory case. The other examples of
corroborating evidence identified above may consist of direct or circumstantial
evidence. The focus in this setting is not on whether the corroborating evidence
is direct or circumstantial. The focus is on whether the evidence is "objectively
verifiable," such that it corroborates the plaintiffs recovered memories.
Accordingly, we affirm the Court of Appeals and hold that corroborating
evidence may consist of the various examples, including proof of a chain of facts
and circumstances having sufficient probative force to produce a reasonable and
probable conclusion that sexual abuse occurred.
charge in criminal cases that states a jury may not convict a defendant "unless
every circumstance relied upon by the State be proven beyond a reasonable
doubt; and all of the circumstances so proven be consistent with each other
and taken together, point conclusively to the guilt of the accused to the
exclusion of every other reasonable hypothesis." Needs, 333 S.C. at 156 n.13,
508 S.E.2d at 868 n.13. This charge indicates circumstantial evidence requires
greater scrutiny than direct evidence in a criminal proceeding. Regardless, we
conclude that circumstantial and direct evidence may be equally valid and
convincing in this civil action.
4. QUESTIONS OF FACT FOR JURY
Given our holding that corroborating evidence is a prerequisite to
application of the discovery rule in a repressed memory case, the final issue is
whether application of the discovery rule and the existence of corroborating
evidence may remain questions of fact for the jury. The answer is "yes."
Application of the discovery rule contained in S.C. Code Ann. § 15-3
535, as well as the determination of the date the statute began to run in a
particular case, are questions of fact for the jury when the parties present
conflicting evidence. See Arant v. Kressler, 327 S.C. 225, 229, 489 S.E.2d 206,
208 (1997) (when testimony conflicts regarding time of discovery of a cause of
action, it becomes an issue for the jury to decide); Johnston v. Bowen, 313 S. C.
61, 64, 437 S.E.2d 45, 47 (1993) (whether a claimant knew or should have
known that they had a cause of action is question for the jury); Santee Portland
Cement Co. v. Daniel Int'1 Corp, 299 S.C. 269, 274, 384 S.E.2d 693, 696 (1989)
(application of discovery rule to a claim is a question of fact for jury), overruled
on other grounds by Atlas Food Sys. and Servs., Inc. v. Crane Nat'l Vendors Div.
of Unidynamics Corp., 319 S.C. 556, 462 S.E.2d 858 (1995); Brown v. Finger,
240 S.C. 102, 113, 124 S.E.2d 781, 786 (1962) (when testimony is conflicting
upon the statute of limitations, it becomes an issue for jury to decide); Maher
v. Tietex Corp., 331 S.C. 371, 377, 500 S.E.2d 204, 207 (Ct. App. 1998) (in
determining whether statute of limitations begins to run under discovery rule,
jury must resolve conflicting evidence as to whether a claimant knew or should
have known he had a cause of action).
In this case, following the Church's motion for a judgment as a
matter of law based on the statute of limitations, Moriarty must demonstrate
the existence of a genuine issue of material fact regarding the application of the
discovery rule. She also must present corroborating evidence supporting her
claim of alleged abuse. The court must consider the evidence and all inferences
that may be drawn from it in the light most favorable to Moriarty, the non
moving party. See Rule 56, SCRCP; Manning v. Quinn, 294 S.C. 383, 365
S.E.2d 24 (1988).
If the motion is denied, Moriarty still bears the burden of proving
at trial that she repressed memories of the abuse and that corroborating
evidence supports her claim. If the jury finds for the plaintiff on those issues,
the jury must determine when the plaintiff recalled the abuse, such that a
person of common knowledge and experience would be on notice that some right
of hers has been invaded or that some claim against another party might exist.
It is on that date the statute of limitations begins to run. See Moriarty, 334
S.C. at 169, 511 S.E.2d at 709 (citing Olsen, 865 P.2d at 1349-50). Application
of the discovery rule at summary judgment and at trial is an objective
determination. Arant, 327 S.C. at 229, 489 S.E.2d at 208; Kreutner v. David,
320 S.C. 283, 285, 465 S.E.2d 88, 90 (1995); Wiggins v. Edwards, 314 S.C. 126,
128-29, 442 S.E.2d 169, 170 (1994).
We hold that a plaintiff may bring a cause of action based on
repressed memory syndrome to recover damages for sexual abuse she allegedly
suffered as a child. A repressed memory plaintiff may assert the discovery rule
contained in S.C. Code Ann. § 15-3-535 (Supp. 1999). However, the plaintiff
must present - both at the summary judgment stage and at trial - objectively
verifiable evidence to corroborate a repressed memory claim in order to use the
discovery rule. Such corroborating evidence may consist of direct or
circumstantial evidence. The plaintiff must use expert testimony to establish
the abuse and the fact of the repressed memories. The application of the
discovery rule, as well as the existence of corroborating evidence, are questions
of fact for the jury to determine when the parties present conflicting evidence.
We express no opinion on the merits of Moriarty's claim or on the
validity of repressed memory syndrome as it may apply in her case. We reverse
the grant of summary judgment to Church and remand this case for further
proceedings consistent with this opinion.
TOAL, C.J., BURNETT, PLEICONES, JJ., and Acting Justice
L. Henry McKellar, concur.