Murphy v. Merzbacher
Murphy v. Merzbacher
Opinion of the Court
Maryland Code (1974, 1995 Repl.Vol.), § 5-101 of the Courts and Judicial Proceedings Article, Maryland’s general statute of limitations, ordinarily requires a civil lawsuit to be filed within three years from the date the action accrues. Nonetheless, section 5-201(a) of that same Article provides that
“[w]hen a cause of action subject to a limitation under Subtitle 1 of this title accrues in favor of a minor or mental incompetent, that person shall file his action within the lesser of three years or the applicable period of limitations after the date the disability is removed.”
We are asked in this appeal whether a defendant can be equitably estopped from asserting limitations when threats by the defendant have allegedly prevented or otherwise frustrated the plaintiff from bringing suit within the applicable limitations period. Without foreclosing that possibility, we nonetheless shall hold that under the circumstances presented in this case, Appellants’ claims are barred for a want of timely prosecution.
I.
The genesis of this appeal reaches back nearly twenty years to the 1970’s when twelve of the Appellants were students at the Catholic Community Middle School of South Baltimore, Inc. The Archdiocese of Baltimore, Division of Catholic Schools (“Archdiocese”), employed John Joseph Merzbacher as an instructor at that school. According to the Appellants,
In January of 1994, Merzbacher was indicted in the Circuit Court for Baltimore City for the rape and sexual child abuse of Elizabeth Murphy, an Appellant in the case sub judice. On June 8,1995, a jury convicted Merzbacher of those crimes, and he was sentenced to life imprisonment plus ten years.
On January 6, 1994, Appellant Murphy filed the first of fourteen civil complaints filed by Appellants in the Circuit Court for Baltimore City against Merzbacher and the Archdiocese. Murphy, along with the other Appellants, sought compensatory and punitive damages for various intentional and non-intentional torts resulting from their alleged sexual abuse by Merzbacher.
The Archdiocese responded with a Motion to Dismiss asserting Maryland’s three-year statute of limitations.
Following discovery, the Archdiocese filed a new Motion to Dismiss, or, in the Alternative, [a Motion] for Summary Judgment, once again pleading limitations as a defense. On October 26, 1995, the circuit court issued a Memorandum and Order granting summary judgment in favor of the Archdiocese, concluding that although threats may estop a defendant from asserting limitations, Appellants’ claims were nonetheless barred since Merzbacher’s threats ceased long before “the victims reached the age of majority [and] the three year period of limitations period that followed.” Judgment was similarly entered in favor of Appellee Merzbacher on November 16,1995.
Because they contained common issues of law and fact, the court consolidated Appellants’ cases for “the purposes of discovery, pre-trial matters, and appellate review.” That Order issued on November 21, 1995, and served as a final and joint judgment in favor of Merzbacher and the Archdiocese in all of the Appellants’ cases. Appellants then noted a timely appeal to the Court of Special Appeals. We issued a Writ of Certiorari on our own motion before consideration of the cases by the intermediate appellate court. Such other facts as necessary are incorporated into the discussion below.
II.
As this is an appeal from a grant of summary judgment in Appellees’ favor, our sole task is to determine whether
In assessing the court’s actions below, we point out that ‘"ordinary principles governing summary judgment ... continue to apply when the issue on summary judgment is limitations[.]” O’Hara v. Kovens, 305 Md. 280, 304, 503 A.2d 1313, 1325 (1986). If the plaintiff files his or her action beyond the limitations period, it is generally barred, entitling the defendant to judgment as a matter of law.
We have previously observed that a statute of limitations is nothing more than “the legislature’s judgment about the reasonable time needed to institute [a] suit.” Doe v. Maskell, 342 Md. 684, 689, 679 A.2d 1087, 1089 (1996). As the United States Supreme Court acknowledged over fifty years ago:
“Statutes of limitation find their justification in necessity and convenience rather than in logic. They represent expedients, rather than principles. They are practical and pragmatic devices to spare the courts from litigation of stale claims, and the citizen from being put to his defense after memories have faded, witnesses have died or disappeared, and evidence has been lost. (Internal citation omitted). They are by definition arbitrary, and their operation does not discriminate between the just and unjust claim, or the voidable and unavoidable delay. They have come into the law not through the judicial process but through legislation. They represent a public policy about the privilege to litigate.”
Chase Securities Corp. v. Donaldson, 325 U.S. 304, 314, 65 S.Ct. 1137, 1142, 89 L.Ed. 1628, 1635 (1945). Thus, when plaintiffs imprudently prolong their decision to bring an action, these statutes act as a complete bar to their claims,
Ordinarily, our statute of limitations begins to “accrue” on the date of the wrong. The assumption, of course, is that “a potential tort plaintiff is immediately aware that he [or she] has been wronged [and] is therefore put on notice that the statute of limitations” is running. Harig v. Johns-Manville Products, 284 Md. 70, 76, 394 A.2d 299, 303 (1978). The nature of some torts, however, belies this assumption. Thus, when stealth, subterfuge, or other difficulties of detection leave a plaintiff “blamelessly ignorant” of the facts and circumstances legally entitling him or her to relief, the statute does not begin to run against the plaintiff, unless he or she knows, or through the exercise of reasonable diligence should know, of the wrong. Doe, supra, 342 Md. at 690, 679 A.2d at 1090 (quoting Poffenberger v. Risser, 290 Md. 631, 637, 431 A.2d 677, 681 (1981)); Hecht v. Resolution Trust Corp., 333 Md. 324, 334, 635 A.2d 394, 399 (1994). This so-called “discovery rule” is not so much an exception to the statute of limitations, as it is a recognition that the Legislature, in employing the word “accrues” in § 5-101 never intended to close our courts to plaintiffs inculpably unaware of their injuries. Harig, supra, 284 Md. at 80, 394 A.2d at 305 (quoting Urie v. Thompson, 337 U.S. 163, 69 S.Ct. 1018, 93 L.Ed. 1282 (1949) (construing statute of limitations within Federal Employers’ Liability Act and holding unreasonable and inequitable notion that action accrues on the date of the last known exposure to an inherently unknowable harm)); see also Hecht, supra, 333 Md. at 333, 635 A.2d at 399 (when limitations are at issue, it is necessary to judicially determine when accrual occurred to trigger the operation of the statute).
Otherwise, we have consistently held that our statutes of limitations are to be strictly construed, and absent a legislative
III.
Appellants endeavor to persuade us that Merzbaeher and the Archdiocese should be equitably estopped from asserting limitations or alternatively, that this Court should recognize an exception to the general statute of limitations under a theory of duress. In our view, however, there is no meaningful distinction between the two theories advanced by Appellants. Rather, duress and estoppel share a cause and effect relationship. It is upon the grounds of duress that Appellants seek to estop Merzbaeher and the Archdiocese from asserting limitations.
Estoppel by Duress
a.
Despite our historically strict stance on statutes of limitations, this Court first intimated in 1972 that “unconscionable, inequitable, or fraudulent act[s] of commission or omission upon which another relie[s] and has been mislead to his [or her] injury,” may equitably estop a defendant from raising limitations as a defense under a general statute of limitations.
A few months later, a similar result obtained in Nyitrai v. Bonis, 266 Md. 295, 292 A.2d 642 (1972), but for a different reason. In Nyitrai, our predecessors recognized that
“where the inducement for delay or the hindrance to the commencement of an action has ceased to operate before the expiration of the limitation period so as to afford the plaintiff ample time thereafter in which to institute his action prior to the running of the statute of limitations, he cannot excuse his failure to do so on the ground of estoppel.” (Citations omitted).
Stated succinctly, “equitable estoppel will not toll the running of limitations absent a showing that the defendant ‘held out any inducements not to file suit or indicated that limitations would not be pleaded,’ ” Booth Glass, supra, 304 Md. at 624, 500 A.2d at 645 (quoting Nyitrai, supra, 266 Md. at 300, 292 A.2d at 645), and that the plaintiff brought his or her action within a reasonable time after the conclusion of the events giving rise to the estoppel.
b.
The inducements to which Appellants point are Merzbacher’s alleged threats. Although a novel application of the estoppel rule in Maryland, we, like the First Appellate District of the Courts of Appeal of California, agree that such an application is “plausible.” See DeRose v. Carswell, 196 Cal.App.3d 1011, 1026, 242 Cal.Rptr. 368, 377 (1987); see also Jones v. Jones, 242 N.J.Super. 195, 208, 576 A.2d 316, 322 (1990) (duress tolls the statute of limitations, at least, when, as here, it is either an element of or inherent in the underlying cause of action). Indeed, a potential tort plaintiff can as much be induced to delay his or her action by an affirmative threat, as he or she can by a false promise.
In a case factually similar to the instant case, the Supreme Court of California considered the timeliness of a sexual assault claim under the one-year statute of limitations set forth in California’s Tort Claims Act. As that court observed
“[e]stoppel most commonly results from misleading statements about the need for or advisability of a claim; actual*536 fraud or the intent to mislead is not essential.9 (Internal citations omitted). A fortiori, estoppel may certainly be invoked when there are acts of violence or intimidation that are intended to prevent the filing of a claim. (Original emphasis).”
John R. v. Oakland Unified School Dist., 48 Cal.3d 438, 445, 256 Cal.Rptr. 766, 769 P.2d 948, 951 (1989).
New York takes a similar view of limitations with respect to estoppel by duress in minority sexual assault cases. See Zoe v. Frederick F.G., 617 N.Y.S.2d 370, 208 A.D.2d 675 (1994); Doe v. Roe, 596 N.Y.S.2d 620, 192 A.D.2d 1089 (1993); Hoffman v. Hoffman, 556 N.Y.S.2d 608, 162 A.D.2d 249 (1990). Under New York law, as in our holding in Nyitrai, supra, plaintiffs seeking to avoid limitations on the grounds of duress must show that they brought their actions within a reasonable time after the events giving rise to the estoppel have ceased. Zoe, 617 N.Y.S.2d at 371, 208 A.D.2d at 675; Doe, 192 A.D.2d at 1090-91, 596 N.Y.S.2d at 621; Hoffman, 556 N.Y.S.2d at 608, 162 A.D.2d at 249. We note, however, that in none of these cases did the court permit the plaintiff to escape limitations under a theory of estoppel by duress.
Although Appellants suggest otherwise, California parallels the New York approach. For example, in DeRose, supra, the
In so holding, that court observed that:
“[the plaintiff] expressly alleged that [the offensive] conduct occurred ... “when she was approximately four years old and until she was 11 years old (1966-1973).’ The Court in ... Lobrovich [, supra] held that five weeks were sufficient time for the plaintiff to institute an action after the conduct giving rise to an estoppel ceased. In this case, [the plaintiff] had a year to file suit as an adult.”
196 Cal.App.3d at 1026, 242 Cal.Rptr. at 377.
Despite the holding in the above cases, Appellants direct our attention to John R., supra. Although the precise issue in John R. was the timeliness of a minor’s claim against the Oakland Unified School District (“District”) for alleged acts of sexual molestation by a teacher under the doctrine of respondent superior, the estoppel argument raised against the District is identical to the argument Appellants press here. In order to fully appreciate the relevance of John R., a review of its pertinent facts and law will serve to illuminate the present controversy.
c.
Fourteen year-old John R. was allegedly molested by his mathematics teacher over a period of several months, with the
Thereafter, John’s parents brought suit on his behalf and in their own right against the teacher and the District. At the trial’s outset, judgment was entered in favor of the District on all counts, based upon, inter alia, limitations.
Under California law, limitations ordinarily do not accrue against a minor until he or she reaches the age of majority, after which time any action has to be brought within one year. See Cal.Civ.Proc.Code § 352 (West 1989). The California Tort Claims Act, however, affords minors no grace period. See Cal.Gov’t Code §§ 901, 911.2 and 911.4(b) (West 1989). Any claims accruing in favor of a minor against a public entity must be made in writing within 100 days of the date the action accrues. Cal.Gov’t Code § 911.2. Failing that, Cal.Gov’t Code § 911.4(b) requires that leave to file a late claim be made within one year of the action’s accrual date. John R.’s parents first filed suit some fifteen months beyond the date John R. was last assaulted. Thus, the trial court held that limitations barred all claims against the District.
A California intermediate appellate court reversed, concluding that at least with respect to the limitations issue, the plaintiffs should have enjoyed the benefit of the “delayed discovery” doctrine. John R., 48 Cal.3d at 444, 256 Cal.Rptr. at 769, 769 P.2d at 951. The District appealed that decision.
Though questioning the soundness of the lower appellate court’s application of “delayed discovery,” the Supreme Court of California nonetheless thought a remand to the trial court
Noting that the trial court failed to undertake such an analysis of the timeliness of John R.’s claims, California’s highest court ordered that factual findings be made with respect to “(1) whether any threats were in fact made by the teacher, (2) when the effect of any such threats ceased, or (3) whether the plaintiffs acted within a reasonable time after the coercive effect of the threats ceased.”
IV.
There is a critical, and in our view, dispositive difference between facts of John R. and the case sub judice. The running of the California statutes was not tolled by John R.’s minority, and the cessation of his teacher’s conduct triggered the statutes’ march towards finality. Thus, John R. and his parents were arguably deprived of a portion of their limitations period by the alleged acts and omissions of the defendants. But see n. 13, supra. In the instant case, Appellants cannot and do not claim that they were so deprived. Indeed, Md.Code (1995 Repl.Vol., 1996 Supp.), § 5-201 of the Courts and Judicial Proceedings Article provides in relevant part:
“§ 5-201. Persons under a disability.
(a) Extension of time.—When a cause of action subject to a limitation under Subtitle 1 of this title accrues in favor of a minor or mental incompetent, that person shall file his action within the lesser of three years or the applicable period of limitations after the date the disability is removed.
(b) Exception.—This section does not apply if the statute of limitations has more than three years to run when the disability is removed.”
Appellants concede that none of them had any contact with Merzbacher whatsoever after reaching the age of majority, and some of the Appellants’ last contact with him occurred well before that time. Thus, by their own admissions, Appellants enjoyed the full limitations period provided to them by the General Assembly.
Nonetheless, Appellants attempt to elude this inconvenient fact by two different, but related routes. First, they maintain that “as a general rule ... whether a cause of action is barred
Appellants also maintain that the policy reasons undergirding statutes of limitations militate towards tolling in the instant case. In the Appellants’ view, those policies are not implicated when, as here, their claims are not fraudulent, the witnesses are presently available and willing to testify, the evidence is still fresh, and no inconvenience would accrue to Merzbacher or the Archdiocese. See generally Doe v. Maskell, supra, 342 Md. at 689, 679 A.2d at 1089; Pennwalt Corp. v. Nasios, 314 Md. 433, 437, 550 A.2d 1155, 1158 (1988); Hecht v. Resolution Trust Corp., 333 Md. 324, 333, 635 A.2d 394, 399 (1994); Pierce v. Johns-Manville Sales Corp., 296 Md. 656, 665, 464 A.2d 1020, 1026 (1983); Goldstein v. Potomac Elec. Power Co., 285 Md. 673, 684, 404 A.2d 1064, 1069 (1979); Harig v. Johns-Manville Prods. Corp., supra, 284 Md. at 75, 394 A.2d at 302.
We disagree for several reasons. First and foremost, we conclude as a matter of law that under the applicable principles of estoppel, no jury could find that Appellants acted within a reasonable period of time following the cessation of Merzbacher’s conduct. There was absolutely no evidence that Merzbacher made any threats to the appellants or that he engaged in any overt acts after 1980, and consequently during the three-year period which followed their attaining the age of majority, that prevented Appellants from filing timely actions.
Under this Court’s holding in Nyitrai, supra, if the cessation of the defendant’s conduct affords the plaintiff ample time thereafter in which to institute his or her action prior to the running of the statute of limitations, he or she cannot raise an estoppel argument to bar a defense of limitations. 266 Md. at 299-300, 292 A.2d at 644. It follows that if the alleged conduct ceases before the statute begins to run, the same holds true.
Further, as we indicated in Doe v. Maskell, supra, a statute of limitations is nothing more than a legislative judgment about the amount of time needed to initiate a suit.' 342 Md. at 689, 679 A.2d at 1089. Appellants implore this Court to ignore that judgment and substitute its own. Recognizing the peculiar difficulties visited upon those of tender years who are injured in their minority, our Legislature has already determined the amount of time reasonably needed to bring an action after reaching the age of majority. We cannot disturb that determination.
Also, whether or not the concerns prompting statutes of limitations are absent in the instant case is quite beside the point. Again, it is neither the duty nor the province of this Court to rewrite a legislative enactment simply because it is socially useful or judicially expedient to do so. That function belongs solely to the General Assembly.
Accordingly, we hold that in view of the fact that Merzbacher’s alleged threats ceased before any of the Appellants reached the age of majority, their failure to maintain their actions within the applicable limitations period after that date was unreasonable as a matter of law and absolutely bars their claims against Merzbacher.
Y.
Appellants also contend that Merzbacher’s alleged threats should be imputed to the Archdiocese to similarly prevent it
JUDGMENTS AFFIRMED, WITH COSTS.
ELDRIDGE and RAKER, JJ., dissent.
. Sharon Bruce, Jane Doe, Mike Doe, Maryland Lewandowski, Bryan House, Elizabeth Murphy, James Doe, Katherine Micolowski, Mary Doe, Melody Smith, Steven Melnick, Angela Farley, Jane Roe and Edward Blair.
. Petitioners Bryan House and Angela Farley were never enrolled in the Catholic Community Middle School, although Mr. House did attend summer classes at the school on an informal basis and lived with Merzbacher for a period of time. Ms. Farley was apparently a friend of Mr. House. Both maintain that they were victims of Merzbacher’s attacks.
. Merzbacher’s sentencing took place on July 21, 1995.
. John J. Merzbacher v. State of Maryland, No. 1400, September Term, 1995, 111 Md.App. 745 (1996) (unreported), cert. granted, 344 Md. 115, 685 A.2d 450 (1996).
. To the extent Appellants’ Complaints alleged counts of assault, those claims are governed by Maryland Code (1974, 1995 Repl.Vol.), § 5-105 of the Courts and Judicial Proceedings Article which provides that “[a]n action for assault ... shall be filed within one year from the date it accrues.” Otherwise, Appellants’ claims are subject to Maryland’s general three-year statute of limitations. It provides:
*530 "§ 5-101. Three-year limitation in general.
A civil action at law shall be filed within three years from the date it accrues unless another provision of the Code provides a different period of time within which an action shall be commenced.”
. Petitioners do not attempt, and indeed cannot attempt, to argue that they were only recently aware of their injuries. Such an argument would strain credulity. See, e.g., Doe v. Archdiocese of Washington, et al., 114 Md.App. 169, 689 A.2d 634 (1997).
. In Chandlee v. Shockley, 219 Md. 493, 150 A.2d 438 (1959) this Court noted that some statutes limit the right of recovery (such as § 5-101) and some create a new cause of action but employ a time limit as a condition precedent (such as then Md.Code (1957), Art. 93, § 112) (granting the right of third parties to sue estate executors or administrators “in any action which might have been maintained against the deceased^]).” Nevertheless, both species of statutes are subject to being tolled by affirmative acts of waiver or fraud on the part of the
. Then Maryland Code (1957, 1972 Repl.Vol.), Art. 57, § 1 provided that ”[a]ll actions of account, actions of assumpsit, or on the case ... shall be commenced, sued or issued within three years from the time the cause of action accrued[.]”
. This view of estoppel is consistent with Maryland law. In Knill v. Knill, this Court observed that it has consistently viewed equitable estoppel as
" 'the effect of the voluntary conduct of a party whereby he is absolutely precluded both at law and in equity, from asserting rights which might perhaps have otherwise have existed, either of property, of contract, or of remedy, as against another person, who has in good faith relied upon such conduct, and has been led thereby to change his position for the worse and who on his part acquires some corresponding right, either of property, of contract, or of remedy.' ”
306 Md. 527, 534, 510 A.2d 546, 549 (1986) (quoting 3 J. Pomeroy, Equity Jurisprudence, § 804 (5th ed. 1941)). The court also noted that "[ajlthough wrongful or unconscionable conduct is generally an element of estoppel, an estoppel may arise even where there is no intent to mislead, if the actions of one party cause a prejudicial change in the conduct of the other.” Knill, 306 Md. at 534, 510 A.2d at 549-50 (citations omitted).
. The Lobrovich court held that "[i]f there is still ample time to institute the action within the statutory period after the circumstances inducing delay have ceased to operate, the plaintiff who failed to do so cannot claim an estoppel.” Lobrovich v. Georgison, 144 Cal.App.2d 567, 573, 301 P.2d 460, 464 (1956). This view accords with our holding in Nyitrai v. Bonis, 266 Md. 295, 292 A.2d 642 (1972).
. In so holding, the Supreme Court of California opined that "assuming plaintiffs can establish their case, it would plainly be inequitable to permit the [District to escape liability only because the teacher’s threats succeeded in preventing his victim from disclosing the molestation until the time for filing a claim against the [District had elapsed. We conclude that, for purposes of applying equitable estoppel, the time for filing a claim against the [District was tolled during the period that the teacher’s threats prevented plaintiffs from pursuing their claims.”
John R. v. Oakland Unified School Dist., 48 Cal.3d 438, 446, 256 Cal.Rptr. 766, 770, 769 P.2d 948, 952 (1989).
. In light of the facts as alleged by the plaintiffs in John R., its holding gives us pause. Equitable estoppel will bar a defendant from raising limitations as a defense so long as the defendant’s voluntary conduct prevented the plaintiff from filing suit within the applicable limitations period, and the plaintiff pursued his or her claim within a reasonable amount of time following the cessation of the events prompting the estoppel. The plaintiffs in John R., however, expressly acknowledged that the teacher’s acts were disclosed to the parents ten (10) months after the molestation had terminated and that the plaintiffs delayed their suit pending the resolution of criminal charges against the teacher on the advice of their attorney. The first claim against the teacher and District was thus not brought until fifteen (15) months after the teacher’s alleged conduct had ceased.
While conceivably the teacher’s actions could have delayed plaintiffs’ suit beyond the 100 day limitations period set forth in Cal. Gov’t Code § 911.2, no such assertion can be made with respect to the plaintiffs’ failure to apply for leave to file a late claim within one year as required by Cal. Gov’t Code § 911.4(b). Indeed, plaintiffs’ own counsel instructed them not to file suit until resolution of the criminal proceedings. That aside, the defendant’s conduct in no way prevented plaintiffs from filing suit within the two months after John R. disclosed the abuse.
Dissenting Opinion
dissenting.
The majority reaches a result that allows Merzbacher to profit from the threats, violence and intimidation which he used to prevent the plaintiffs from maintaining actions against him based on the repeated rapes and abuse which Merzbacher inflicted upon the plaintiffs. This result is unconscionable. It is also inconsistent with this Court’s prior opinions. Moreover, the result is not in accord with the public policies underlying statutes of limitations. Under the extraordinary circumstances presented, I would apply principles of estoppel and/or duress and allow the plaintiffs in these cases to pursue their civil claims against Merzbacher.
I.
In determining whether summary judgment was properly granted in these cases, this Court must view all evidence, and inferences derived therefrom, against the moving parties.
A.
A brief review of each deposed plaintiffs testimony is as follows.
Jane Doe
While Jane was a student at the Catholic Community Middle School, Merzbacher continuously fondled her in front of other students. After Jane informed her father that Merzbacher had unsnapped her bra during class, Jane’s father complained to the principal, and warned Merzbacher not to touch his daughter again. (E. 153).
“[Merzbacher] was furious that I told my father about the incident in the classroom, and he told this guy, he said, tell her what I did to the last girl’s father who came to this school and complained about me ... [and] the guy told me that he had killed the girl’s father. And I was hysterical, and I can remember being so upset that he was going to kill my family.” (E. 154).
About a year after this incident occurred, Merzbacher “drove by [Jane’s neighborhood] in his car like real slow, and he gave me that look like ... he was going to kill me or something. And, ... I was having such bad nightmares after that, and that’s when I tried to commit suicide, because I didn’t see no way out. I couldn’t tell my mother. I couldn’t tell my father. I couldn’t tell anybody.” (E. 159).
James Doe
Throughout the period during which Merzbacher taught James at the Catholic Community Middle School, Merzbacher fondled James’s buttocks and other private areas in front of other students, “raped” him, and forced him to fondle female students. (E. 116-118). Merzbacher also physically abused James by kicking him, twisting his arm, and throwing books at him. By threats of harm, Merzbacher forced James to beat up other students.
Angela
Angela first met Merzbacher when he drove her boyfriend Bryan to meet her on a street corner. After parking at an A & P market, Merzbacher got in the back seat of the car with Angela, grabbed her hair, pulled out a gun and began to rape her. (E. 264-265). After Angela tried to jump out of the car, Merzbacher warned her that if she continued to resist him, he would “blow [her] fing head off,” and that if she ever told anyone, he would kill her, her sister and Bryan. (E. 265). Still holding the gun, Merzbacher then forced Bryan to rape Angela. (E. 266). During the next eight months, Merzbacher raped Angela approximately thirty times either at the Catholic Community Middle School or at the Rockaway Beach Fire Department. (E. 267). Each time Merzbacher would tell Angela not to tell anyone or he would kill her family. On one occasion, Angela’s mother overheard Merzbacher make inap
Mary C.
When Mary C. was in eighth grade, Merzbacher would fondle her, lift up her skirt, pinch her breasts, and shove the stem of a smoking pipe into her vagina. (E. 328, 344). During this year, Merzbacher also raped Mary C. at the Rockaway Beach Fire Department. (E. 344). After raping her, Merzbacher pinned her hair to the floor with his foot, and forced three male students to rape her. Mary C. was aware that Merzbacher had a gun in his possession and that “he wasn’t afraid to use it at that point.” (E. 346). Shortly thereafter, Merzbacher approached Mary C. in the storage room of the school and began kissing her. When she resisted, he slammed her against the wall, put his hands around her throat, and told her that if she ever pulled away from him again, he “would kill her.” (E. 347). Merzbacher continued to make similar threats to her approximately three to four times a week. He also threatened the safety of her father, a Baltimore City police officer, several times. On one occasion, Merzbacher pulled Mary C. out of class and asked, “[Mary C.], what’s your father doing here? You’re not blabbing are you? He better not get too nosey or I’ll kill him.” (E. 330). Holding a gun to her head, Merzbacher also warned, “Who’s gun do you think could blow a bigger hole in someone’s head— mine or your father’s?” He added, “My gun could blow a hole so big in Johnny Law’s head.... ” (E. 330).
On another occasion, Merzbacher approached Mary C. after school and asked her if she was pregnant. When she expressed uncertainty, Merzbacher told her that she “better not be” and that, if she were, he would “shoot her.” (E. 347-348).
Elizabeth
On one occasion, Merzbacher pulled out his revolver, spun the chamber, pointed it at Elizabeth’s face and pulled the trigger. Although the gun did not discharge on that day, Elizabeth recalls another afternoon when Merzbacher also played “Russian Roulette” and shot a loaded gun above the heads of several students, yelling “I’ll fucking kill you.” (E. 459). Elizabeth also described a separate incident when Merzbacher
“had a book, a set of fake books and he had a bottle of sherry ..., I had never tasted alcohol before, and he gave me this sherry and then he removed my underwear and raped me while he sat on his desk chair. I was eleven, and he used that pattern repeatedly. Sometimes in that storage room was when he would also pull out his revolver and point it at my head when he raped me.” (E. 462).
Merzbacher “had no qualms about pulling [the gun] out and letting you know he had it, that it was around____” (E. 462).
One afternoon, Merzbacher raped Elizabeth in the storage room with the gun to her head. He shouted, “I will blow your fucking brains out if you ever tell anyone what I have done to you at any point in time. I will find you, I will come and get you.” (E. 463). Merzbacher also warned Elizabeth, “I will kill your father, I will kill your family. You’re a bad little girl. Who would believe you anyway? [B]ut I will fucking blow
Mary Doe
Merzbacher fondled Mary on a daily basis, pulling up her skirt with a stick and grabbing her in her private areas. (E. 192). During a rehearsal for a school play, Merzbacher asked Mary to go to the storage room and fill up his coffee mug. Merzbacher and a male student approached Mary in the storage room from behind, and Merzbacher began fondling her. He then instructed the male student to take Mary’s clothes off and get on top of her. Holding a long-bladed knife, Merzbacher told Mary that he would kill her if she did not stop screaming. Merzbacher then “took the knife and he stabbed a banjo that was next to my head and he told me that if I didn’t shut up, my face would be next.” (E. 193). On a separate afternoon, Merzbacher kept Mary after school, sat on top of her, unbuttoned her blouse and bit her on the breast.
Steven’s first encounter with Merzbacher was in the sixth grade when Merzbacher suddenly started punching Steven, throwing him against the locker and beating him up. (E. 378-379). Thereafter, Merzbacher would force Steven to engage in oral sex with him after class. (E. 380). This type of abuse continued through the year and the next two years, and would frequently occur in front of other teachers. (E. 381). Merzbacher would threaten Steven by telling him that Merzbacher had connections to the “mafia” and to other “hit men” who could get him at any time, and by showing Steven where he had shot his gun through the wall. (E. 380). More than once, Merzbacher would point the gun at Steven, telling him if “you ever tell anybody, I’ll kill you. I’ll kill your father, I’ll kill your mother, I’ll kill your whole family.” (E. 381). The principal once confronted Merzbacher about his abuse of Steven before a classroom of students. In the principal’s presence, Merzbacher choked Steven, pulled his tie, punched him and kicked him, and said “see, I’m not hurting him.” (E. 381). After witnessing this abuse, the principal merely responded, “Oh, John, stop it.”
Bryan
Bryan first met Merzbacher when he was returning a fireman’s coat to the Rockaway Beach Fire Department. There, Bryan recalls that Merzbacher would “laugh,” “cuss,”
“[i]f you pissed John off, he would threaten to have some thugs from South Baltimore come down and beat you to death. But his more specific threats, I mean the threats that I overheard him make and that I firmly—that I honestly did believe him, and I know John probably better than the rest of those students do.... [B]ut there was also a look of ... pure ... evil, that he would sit ... across that table from me at dinnertime and he would be mad, and he would take a glass plate and sling it up into the air and let it bounce off a glass table that I was sitting at, and if it shattered, he was all the more happy, and he would stare at me with the cigar in his mouth and his eyes—I mean, he sat there and looked at you, and nobody could look any worse than John Merzbacher when he wanted to instill fear in you. And the night he told Mary [C.] that he would kill her, he had been drinking, and I believed every word of that, as well as the night he told me. I mean, I have no doubt in my mind that he meant it when he told me that, and he used to tell me that it wasn’t a matter of wanting to kill me or whether anger would drive him to do it or betrayal,----he*552 would have to kill me to prevent himself from going to jail. And this is what he told me. And he told me this time and time again____” (E. 303-304).
One evening when Bryan and Merzbacher were sitting in Merzbacher’s car, Merzbacher “pulled that hammer [of the gun] back that night to where a flip of his finger would have blew my skull apart, and he told me that if I ever said anything ... he would have to kill me.” (E. 304). After Merzbacher was indicted, Bryan “had nightmares where he’s after my children now, and, ... I wake up in a panic to where I don’t realize that I’m still in a dream.” (E. 310).
Katherine
Throughout the period when Katherine attended Merzbacher’s class, Merzbacher would frequently grab her, push her against the blackboard, put his finger into her vagina, and grab her breasts, in front of the class. (E. 420). Katherine specifically described one incident where
“I was sent in there [the storage room] to wash his coffee mug out, and when I went and was washing his coffee mug out, he came in and started kissing my neck, kissing down my neck and grabbing my hair, and that’s when the original threat that he said to me, you know, ‘Shut your mouth, if you ever breathe a word of this to anybody no matter where you are, no matter how old you are, I will track you down and I will blow your fucking head off.’ ... and I was terrified because I didn’t know what next was going to happen.” (E. 420).
Katherine did not report Merzbacher’s conduct because “I was terrified. When you go through something like that, I mean, I
Sharon
Merzbacher began pulling up Sharon’s uniform and fondling her when she was in the sixth grade.
During Sharon’s final year of middle school, Merzbacher began to approach her in the storage room where the coffee
Mike Doe
Merzbacher first began abusing Mike when Mike was in the sixth grade at the Catholic Community Middle School. Merzbacher would pull Mike’s hair, punch him in the arm, smack him in the head and touch him in his private areas and his buttocks.
Melody
When Melody attended the Catholic Community Middle School, she studied in an empty room across the hall from Merzbacher’s classroom. (E. 512). Consequently, she frequently witnessed Merzbacher physically and sexually abusing his students. Melody specifically viewed one female student sitting on Merzbacher’s lap with her underwear’ down to her ankles. The principal responded to Melody’s concern over this incident by telling her that the student “was having a problem with the elastic in her underwear.” (E. 515). Upon
B.
In January 1994, Merzbacher was arrested and charged with several counts of rape and sexual child abuse. Thereafter, most of the plaintiffs felt safe enough to come forward and discuss the abuse with either their families, the State’s Attorney, a private attorney or the police. Until this time, however, the plaintiffs, who were repeatedly threatened at gunpoint to remain silent, still believed that their safety, and that of their families, was in jeopardy. As the testimony set forth above demonstrates, Merzbacher had repeatedly warned them that, if they reported him, he could find them “no matter where they were” and would kill them and their families. Mike Doe testified that “[u]p to [when Merzbacher was arrested,] I had been afraid because he had threatened my life and I feared for my wife and I feared for my family’s lives, but when I saw him with his handcuffs on and all these other people
Several plaintiffs also testified that, because of the large group of former students who came forward to report Merzbacher, there was “safety in numbers.” (E.g., Elizabeth’s testimony at E. 472). Katherine testified that “I would have never come out by myself with this. Never.” (E. 430). The State’s Attorney and the police detectives also assured many of the plaintiffs of their continued safety and protection from Merzbacher if they disclosed the abuse. Elizabeth stated that “I have the protection of the State’s Attorney or the police assuring me if I so much as fall up a step, Merzbacher is going to be the first person they look toward.” (E. 477). And Jane Doe testified that “[the detective] assured me that I would be safe if I told him. He said, don’t worry, you’ll be totally safe---- I assumed [Merzbacher] was going to be arrested, and then I’ll be safe.” (E. 166).
Thus, only after Merzbacher was arrested and after the plaintiffs were assured of their safety, did they believe that they could come forward with their claims against Merzbacher. There is absolutely no evidence in the record indicating that, prior to this time, the plaintiffs did not believe that they coidd come forward without endangering themselves or their families. Moreover, in light of the evidence, the plaintiffs’ fears were obviously not unreasonable.
A.
Almost 150 years ago, this Court held that, where barring an action on the ground of limitations “would be unjust and inequitable,” the defense of limitations “should not be sanctioned,” Steuart v. Carr, 6 Gill. 430, 440 (1848).
More specifically, this Court has repeatedly taken the position that a defendant will be deemed to have waived the defense of limitations or will be estopped from relying upon the running of limitations when the defendant “asked the [plaintiffs] to forbear bringing suit against him,” Leonhart v. Atkinson, 265 Md. 219, 228, 289 A.2d 1, 6 (1972), or when “the defendant ‘held out any inducements not to file suit,’ ” Booth Glass Co. v. Huntingfield Corp., 304 Md. 615, 624, 500 A.2d 641, 645 (1985), quoting Nyitrai v. Bonis, 266 Md. 295, 300, 292 A.2d 642, 645 (1972). See also, e.g., Jordan v. Morgan, Adm’x, 252 Md. 122, 132, 249 A.2d 124, 129-130 (1969); Cornett v. Sandbower, Adm’r, 235 Md. 339, 342, 201 A.2d 678, 680 (1964) (relying upon, inter alia, Steuart v. Carr, supra, 6 Gill at 440); Bayshore Industries v. Ziats, 232 Md. 167, 192 A.2d 487 (1963); Chandlee v. Shockley, 219 Md. 493, 495, 502-503, 150 A.2d 438, 439, 443 (1959) (finding that the defendant, who “requested and induced” the plaintiff not to file suit, waived the defense of limitations or was estopped from defending on the ground of limitations).
When a rapist and child abuser holds a gun to his young victim’s head and threatens to shoot the victim, as well as kill the members of the victim’s family if the victim ever discloses the rape and abuse, the conduct of the rapist and abuser clearly amounts to an inducement not to file suit. It is more than the equivalent of “askfing]” the victim “to forbear bringing suit.” Leonhart v. Atkinson, supra, 265 Md. at 228, 289 A.2d at 6. Bringing an action in court is obviously a form of disclosure, and Merzbacher’s threats covered any disclosure. There are few, if any, inducements stronger than holding a loaded gun to a person’s head. Furthermore, under. the evidence set forth by the plaintiffs, the inducements were
The majority opinion states that treating Merzbacher’s “alleged threats” as “inducements” is “a novel application of the estoppel rule in Maryland” (majority opinion at 535). This is not quite accurate.
While not discussed by the majority, this Court’s opinion in Bayshore Industries v. Ziats, supra, 232 Md. 167, 192 A.2d 487, is very much on point. Moreover, the holding in Bay-shore Industries requires a reversal in the present cases.
This Court, in unanimously affirming the claimant’s judgment against Bayshore Industries, indicated that the threats amounted to duress sufficient to preclude the employer’s reliance on the statute of limitations, saying (232 Md. at 174, 192 A.2d at 491):
“The threat that Bayshore would bar the appellee from future employment is similar to a threat to cause the loss of present employment. A threat of the latter type has been held in suits for personal injuries to amount to duress sufficient to avoid a release by an employee in favor of an employer. Holmes v. Industrial Cotton Mills Co., 64 F.Supp. 20 (D.C.S.C.) (Present employer); Wise v. Midtown Motors (Minn.), [231 Minn. 46] 42 N.W.2d 404 (threat by present employer, release to former employer); Perkins Oil Co. of Delaware v. Fitzgerald (Ark.), [197 Ark. 14] 121 S.W.2d 877 (threat to discharge the injured employee’s stepfather, then the only breadwinner in the family, and to blacklist him with other employers in a like business); and Huddleston v. Ingersoll Co. (Colo.), [109 Colo. 134] 123 P.2d 1016 (threat to discharge another). See also annotation, 20 A.L.R.2d 743, at 751.”
The Court went on to hold that the coercion “amount[ed] to clearly inequitable conduct” and that “[t]he employer should be estopped from profiting by such conduct.” 232 Md. at 174-175, 192 A.2d at 491. The employer’s threats regarding future employment were viewed by the Court as constituting an
A provision of the Workers’ Compensation Act applicable in the Bayshore Industries case, former Maryland Code (1957), Art. 101, § 39(c), did relieve a claimant of the bar of limitations if the failure to file a timely claim “was induced or occasioned by fraud, or by facts and circumstances amounting to an estoppel,” 232 Md. at 169, 192 A.2d at 488. While the Court in Bayshore Industries did state that the claimant was entitled to relief under this statutory provision, 232 Md. at 174, 192 A.2d at 491, the Court also clearly held that the claim would not be barred by limitations under general principles of equitable estoppel and under this Court’s prior decisions in cases not involving such a statutory provision, 232 Md. at 175-178, 192 A.2d at 491-494. The Bayshore Industries opinion relied on general principles of equitable estoppel set forth in 3 Pomeroy’s Equity Jurisprudence (5th Ed.), §§ 802-805 (1944), as well as on numerous cases in Maryland applying those principles. See 232 Md. at 175-177, 192 A.2d at 492-493.
Furthermore, the Court’s opinion in Bayshore Industries relied most heavily on Chandlee v. Shockley, supra, 219 Md. at 502-503, 150 A.2d at 443, where this Court held that the defendant had waived or was estopped to rely on the bar of limitations in a statutory action, even though the statute there involved contained no provision similar to former § 39(c) of the Workers’ Compensation Act.
“The Maryland case which is perhaps closest to the instant case insofar as estoppel to plead limitations is concerned is Chandlee v. Shockley, 219 Md. 493, 150 A.2d 438. In that case the plaintiff had been injured in an automobile collision*562 in which the driver of the other car, who was the defendant’s decedent, had been killed. Suit was not filed against the administratrix until more than six months after her qualification, and the administratrix demurred to the declaration on the ground of limitations under § 112 of Article 93 of the Code (1957). This Court held that the time limitation contained in that section was a limitation on the right and not merely on the remedy and hence that the defense could be raised by demurrer. This Court further held (over the dissent of two Judges) that the allegations of the amended declaration as supplemented by a bill of particulars were sufficient to estop the administratrix from asserting the defense of limitations. These allegations were, in brief, that a representative of the decedent’s insurance company, who was authorized to act for the administratrix, had assured the plaintiffs counsel that if settlement efforts failed, the defense of limitations would not be pleaded. § 112 of Article 93 contained no proviso similar to that contained in § 39(c) of Article 101 of the Code (1957)—a difference which was pointed out in the dissenting opinion. The majority relied heavily upon Scarborough v. Atlantic Coast Line R. Co., 178 F.2d 253 (C.A.4th.) (cert. den. 339 U.S. 919 [70 S.Ct. 621, 94 L.Ed. 1343]), in which the filing of suit under the Federal Employers’ Liability Act was delayed beyond the statutory period because of erroneous information given by a railroad claim agent as to the time within which suit could be brought. This Court quoted from Scarborough a passage containing this statement: ‘The ancient maxim that no one should profit by his own conscious wrong is too deeply imbedded in the framework of our law to be set aside by a legalistic distinction between the closely related types of statutes of limitations.’ That ancient maxim is also recognized as the law of this State.... ”
Consequently, the general equitable principle that “ ‘no one should profit by his own conscious wrong,’” Chandlee v. Shockley, swpra, 219 Md. at 500, 150 A.2d at 442, and the principle that a defendant, who induces the plaintiff not to file suit, has waived or is estopped from relying upon the bar of
B.
The majority opinion at one point appears to accept the principle that “a potential tort plaintiff can as much be induced to delay his or her action by an affirmative threat, as he or she can by a false promise” (majority opinion at 535), and that, in this situation, a defendant may be estopped from relying upon the bar of limitations. Later, however, the majority refuses to apply this principle to the present cases “for several reasons.” The “[fjirst and foremost” reason is that, as a matter of law, “no jury could find that Appellants acted within a reasonable period of time following the cessation of Merzbacher’s conduct.” (Majority opinion at 542). The majority continues by concluding that “unsubstantiated fear of retaliation is not” a “valid excuse for not commencing suit within the three year general limitations period” (ibid.).
The majority’s description of the plaintiffs’ fear of retaliation as “unsubstantiated” is utterly amazing. Every single one of the plaintiffs were threatened with death by Merzbacher. He also threatened to kill their families. The threats were “substantiated” by holding a gun to their heads, by shooting guns in their presence, by shooting a gun over their heads, by physical abuse, by a knife, and by bringing someone to tell the students that Merzbacher had killed a girl’s father because the girl had complained about Merzbacher. I do not know how Merzbacher’s threats could be more “substantiated” unless he had carried them out and killed one or more of the plaintiffs.
The majority’s view that the plaintiffs acted unreasonably, as a matter of law, when they failed to come forward before limitations had run, and thus before Merzbacher was apprehended, shows an incomprehensible disregard for the coercive effect of holding a loaded gun to a person’s head, and particu
The majority emphasizes that Merzbacher’s conduct towards these plaintiffs ceased long before limitations had run (majority opinion at 542). Although the majority’s reliance on such a factor might be warranted under entirely different circumstances, the majority’s view totally ignores the nature and reality of the threats in these cases. The threats, and the heinous conduct backing them up, were deliberately calculated to have, and reasonably did have, effects into the indefinite future. Allowing the defendant Merzbacher to successfully take the position that the victims should have come forward before limitations expired, when it was Merzbacher who repeatedly emphasized, at the point of a gun, that “if you ever tell anybody about this, I’ll kill you and I’ll kill your whole fucking family in a blink of an eye” (E. 156, emphasis added), is shockingly unfair.
While purporting to recognize that one may be estopped from relying on limitations, the majority’s final reason for not applying the principle in these cases is as follows (majority opinion at 542-543):
“[A] statute of limitations is nothing more than a legislative judgment about the amount of time needed to initiate a suit____ Appellants implore this Court to ignore that judgment and substitute its own. Recognizing the peculiar difficulties visited upon those of tender years who are injured in their minority, our Legislature has already determined the amount of time reasonably needed to bring an action after reaching the age of majority. We cannot disturb that determination.”
This statement makes the majority’s recognition of the estoppel principle completely illusory. If a reasonable time after the defendant’s tortious conduct for bringing suit is always the
The flaw in the majority’s reasoning is that an estoppel to rely upon a legal principle does not contradict or infringe upon that legal principle. Otherwise, there would be no concept of equitable estoppel. To hold that a defendant, because of his own conduct, may not take advantage of a particular legal proposition, including a statute of limitations, does not subvert or contradict that legal proposition. The particular law remains the same; the defendant, because of his conduct, simply is not allowed to take advantage of the law. Merzbacher should not be allowed to take advantage of his successful threats in these cases.
C.
Not only is the plaintiffs’ position in the present cases supported by the principles set forth in this Court’s prior opinions, but the plaintiffs’ position is supported by decisions elsewhere applying estoppel and/or duress to bar a defendant, accused of sexual abuse, from raising limitations as a defense. These decisions involve far less egregious facts than those presented in the cases at bar.
For example, the Supreme Court of California applied the doctrine of equitable estoppel in John R. v. Oakland Unified School Dist., 48 Cal.3d 438, 256 Cal.Rptr. 766, 769 P.2d 948 (1989). In John R., a fourteen-year-old student was molested
“[Ujnder the reasoning of a number of recent Court of Appeal decisions ..., the facts alleged in the complaint, if proven, might well demonstrate that the claim was timely filed under a theory of equitable estoppel----
* * # :H * #
“Estoppel most commonly results from misleading statements about the need for or advisability of a claim; actual fraud or the intent to mislead is not essential---- A fortiori, estoppel may certainly be invoked when there are acts of violence or intimidation that are intended to pre*567 vent the filing of a claim. [Citations omitted]. And here, the teacher’s threats to retaliate against John if the boy reported the incidents of sexual molestation allegedly did just that.
“Although the teacher’s alleged threats in this case were no doubt motivated largely by self-interest, rather than to prevent John from filing a claim against the district, it would clearly be inconsistent with the equitable underpinnings of the estoppel doctrine to permit the district to benefit by such threats---- [W]e have no hesitation in concluding that the teacher’s threats may be taken into account in resolving the procedural status of plaintiffs claims against the district.”
A New York court adopted a similar position in Anonymous v. Anonymous, 584 N.Y.S.2d 713, 154 Misc.2d 46 (1992). There, the plaintiff alleged that she was sexually abused by her best friend’s father from the time she was four years old until she turned twenty four. The plaintiff testified that the defendant “would tell her that he was doing these ‘things’ for her benefit and that she should not tell anyone else because it was their secret.” 584 N.Y.S.2d at 718, 154 Misc.2d at 49. The defendant’s behavior threatened and frightened the plaintiff, causing her not to reveal the acts in question until 1991, four years after the abuse ended. The defendant claimed that limitations should bar the plaintiffs suit. The plaintiff argued that equitable estoppel should preclude the defendant’s reliance on limitations because, “by virtue of ... statements made by defendant, ... that he was doing this for her own good or that it was their secret[,] ... she was under duress and felt threatened and coerced and was disabled from and unable to commence the action in a timely fashion.” 584 N.Y.S.2d at 722, 154 Misc.2d at 56. The court concluded that the fact finder should be given the opportunity to consider whether equitable estoppel should bar the defendant from raising limitations as a defense. 584 N.Y.S.2d at 722-723, 154 Misc.2d at 56-57.
In Jones v. Jones, 242 N.J.Super. 195, 576 A.2d 316 (1990), the plaintiff brought suit against her parents on behalf of
Most recently, the California Court of Appeals considered whether a child abuser should benefit from the statute of limitations in Christopher P. v. Mojave Unified School Dist., 19 Cal.App.4th 165, 23 Cal.Rptr.2d 353 (1993). There, Christopher, an 11-year-old boy, was sexually molested by a teacher employed by the defendant, Mojave Unified School District, during a school field trip. After molesting Christopher, the teacher told him “not to tell anyone.” As a result of the teacher’s statement, and the way in which the teacher said it, Christopher was “afraid of what [the teacher] might do to [him].” 19 Cal.App.4th at 168, 23 Cal.Rptr.2d at 355. He continued to fear that his teacher would physically harm him,
“Several circumstances are particularly important in this case. First, the directive not to tell was made by a teacher, a recognized authority figure, to an 11-year-old student. Students generally are expected to follow their teacher’s directives. Second, the statement was made in conjunction with a sexual molestation. A common trait of ‘child sexual abuse accommodation syndrome’ is the child’s failure to report, or delay in reporting the abuse. The very nature of the underlying tort deters the molested child from reporting the abuse. [Citations omitted]. Thus, a molestation coupled with a directive not to report the incident may well deter a child from promptly reporting the abuse and thereby protecting his or her right to redress under the Tort Claims Act....
“Accordingly, we conclude the circumstances presented by this case, if established, are sufficient to support an estoppel. A directive by an authority figure to a child not to tell anyone of the molestation is a sufficient inducement of delay to invoke an estoppel. Whether the District is estopped from asserting as a defense appellant’s failure to comply with the claims statutes presents a question of fact for the trial court.”
D.
The public policies underlying statutes of limitations similarly do not support the majority’s position under the circumstances presented in these cases. For example, the primary
These concerns underlying statutes of limitations, however, are not present in the cases at bar. In these cases, where the allegations involve repetitive and extreme acts of physical and sexual abuse, it is highly unlikely that “memories have faded.” Indeed, the deposition testimony of the twelve available plaintiffs reveals the detail and clarity with which the plaintiffs still recall the abuse inflicted upon them by Merzbacher. Moreover, the plaintiffs still suffer the effects of Merzbacher’s conduct. According to their deposition testimony, most of the plaintiffs still seek counseling to deal with the abuse; many of them have had and will continue to have nightmares about Merzbacher, and several of them have had and will continue to have marital and/or alcohol and drug related problems. Thus, there is no real concern that the plaintiffs’ claims are either fraudulent or stale. Similarly, it would hardly be “unfair” to preclude Merzbacher, who made the threats, from taking advantage of the very threats and coercion that caused the plaintiffs to delay their suits. As discussed earlier, the evidence shows that the reason that the plaintiffs failed to file suit in a timely manner was the extreme threats of physical harm to them and to their families. Once Merzbacher was arrested and the plaintiffs were assured of their safety, they
The majority opinion states that the inapplicability to the present circumstances of the public policies underlying statutes of limitations “is quite beside the point.” (Majority opinion at 543). The majority goes on to indicate that not applying the statute of limitations amounts to “rewriting] a legislative enactment” and that such “function belongs solely to the General Assembly.” Such rigidity with regard to the application of statutes of limitations is not consistent with the previously discussed opinions of this Court declining to apply statutes of limitations because of the defendant’s conduct. It is not consistent with this Court’s opinions adopting the discovery rule. See, e.g., Pierce v. Johns-Manville Sales Corp., supra, 296 Md. at 664-669, 464 A.2d at 1025-1028 (relying on the public policies underlying statutes of limitations in holding that the plaintiffs claim was not time barred); Poffenberger v. Risser, 290 Md. 631, 636, 431 A.2d 677, 680 (1981) (adopting the discovery rule generally “to prevent an injustice in other types of cases”); Sears, Roebuck & Co. v. Ulman, 287 Md. 397, 401, 412 A.2d 1240, 1242 (1980) (“fairness to a plaintiff who has not slept on his rights justifies exceptions to [the] general rule”); Harig v. Johns-Manville Products, supra, 284 Md. at 80, 394 A.2d at 305 (“[ajvoiding possible injustice in such cases outweighs the desire for repose and administrative expediency, which are the primary underpinnings of the limitations statute”).
E.
To reiterate, this Court has long held that a defendant’s reliance on the running of limitations “should not be sanctioned by a Court” where it “would be unjust and inequitable.” Steuart v. Carr, supra, 6 Gill at 440. The Court has applied “ ‘[t]he ancient maxim that no one should profit by his own conscious wrong’ ” to preclude defendants from relying on the bar of limitations. Bayshore Industries v. Ziats, supra, 232 Md. at 177, 192 A.2d at 493, Chandlee v. Shockley, supra, 219 Md. at 500, 150 A.2d at 442.
Finally, the majority’s decision clashes with the concern for victims’ rights which is a major tenet of Maryland public policy.
. The principles of estoppel and duress, while spoken of interchangeably by the majority, are analytically different. Estoppel focuses primarily on the conduct of the defendant, and “operates as a technical rule of law to prevent a party from asserting his rights where it would be inequitable and unconscionable to assert those rights.” Savonis v. Burke, 241 Md. 316, 319, 216 A.2d 521, 523 (1966). The principle of duress, on the other hand, focuses on the state of mind of the reasonable plaintiff. It reflects the policy that a plaintiff should not be penalized for conduct or inaction which reasonably was the product of duress. The present cases, in my view, involve an area where the two principles overlap and where both principles are applicable. Accordingly, like the majority, I shall not discuss each principle separately.
. While there were actually fifteen plaintiffs, there were only twelve who were deposed. One of the plaintiffs committed suicide before a deposition could be taken, and the other two were unavailable for deposition.
. The defendant Merzbacher's deposition was taken, and he did not contradict any of the facts set forth in the plaintiffs’ depositions. Merzbacher pleaded the Fifth Amendment’s privilege against self-incrimination in response to most of the questions asked during his deposition.
. Although normally we do not in opinions set forth references to the record extract before this Court, in light of the extreme nature of Merzbacher’s conduct which was repeatedly testified to in these cases, I have decided to do so. "E” references are to the pages of the record extract filed in this Court.
. James testified that if he did not fondle the female students or beat up several of the male students, Merzbacher would “get" him and "hurt” him. (E. 117). Since the seventh grade, James was aware that Merzbacher had a gun in his possession, and that he would use it at any time. In fact, on one occasion, James saw Merzbacher shoot the gun at street signs as Merzbacher drove students around in his car. (E. 115),
. I have deleted all references to the plaintiffs’ actual surnames where they may have appeared in the deposition transcripts.
. While Merzbacher was still on top of Mary, the principal entered the room. After warning Merzbacher that she did not want his door locked, the principal left the room. (E. 196-197). No disciplinary action was taken.
. A similar event occurred when another Sister entered Merzbacher’s classroom while he was grabbing students. The Sister "gave him a look ... just like, John stop it.” No further action was taken. (E. 385).
. Although Bryan was not enrolled in the Catholic Community Middle School, he frequently attended Merzbacher’s class. (E. 298). Bryan described how Merzbacher would "grab [students] in the crotch or push them up against the car and lean them over the hood ...” (E. 300). On one occasion, Bryan witnessed Merzbacher walk up behind the principal and place his hands on her breasts and on her buttocks. In response, the principal simply "giggled and backed away.” (E. 310). Bryan also recalls confronting another school teacher, who was a priest, when he was drinking beers with Merzbacher and other students. According to Bryan, the priest began to drink beer with Merzbacher and the young students. (E. 311).
. Bryan witnessed Merzbacher shoot his gun on two occasions. On the first occasion, Merzbacher shot a gun through the front windows of Chesapeake High School, shattering the windows and narrowly missing a janitor inside the school lobby. (E. 313). On a separate occasion, Merzbacher stopped his car to talk with some girls, and a van hit him from behind. When the men attempted to exit the van, Merzbacher shot five bullets into the van. After the van drove off, Merzbacher went home to get a sawed-off shot gun. After searching for hours, Merzbacher found the parked van and shot it seven times. (E. 313).
. Katherine’s fear of Merzbacher escalated when she learned that he worked "for 911," and could, Katherine believed, find her wherever she was living. (E. 425).
. Merzbacher also referred to Sharon as "Candy Bar” in front of other students and teachers. (E. 63).
. As the testimony of several witnesses disclosed, it was Merzbacher’s pattern to direct students to fill up or clean his coffee mug in the storage room. After the students would enter the storage room, Merzbacher would approach them and sexually and/or physically abuse them.
. Mike also witnessed Merzbacher touching the breast of the principal when she entered the classroom to hand Merzbacher some papers.
. During this year, Mike recalls seeing a bullet hole in the wall in the back of Merzbacher’s classroom. (E. 234).
. Mike further described the effect of Merzbacher’s threats on his life as follows:
"This living in fear all them years, I mean unless you have been in a similar situation, you don’t know what it’s like to have to live in fear, to have to worry about someone killing you or killing someone else, and having something that you want to tell someone but not being able to, to have a threat on your life.... ” (E. 240).
. In addition, the 1963 opinion in Bayshore Industries directly refutes the majority’s assertion that "this Court first intimated in 1972 that ‘unconscionable, inequitable, or fraudulent act[s] of commission or omission upon which another reliefs] and has been mislead to his [or her] injury’ may equitably estop a defendant from raising limitations as a defense under a general statute of limitations.” (Majority opinion at 533). In fact, the majority itself in footnote 7 of its opinion goes on to cite earlier cases standing for the same principle. The principle was recognized as early as 1848 in Steuart v. Carr, 6 Gill 430, 440.
. Although the claimant had been laid off two days after her accident because Bayshore Industries had completed the order on which she was working, the company had allegedly promised to re-call her.
. Judge Henderson’s dissenting opinion in Chandlee v. Shockley, 219 Md. at 503-504, 150 A.2d at 444, would have drawn a distinction between causes of action under the Workers’ Compensation Act where there was an express provision concerning estoppel, and other causes of action where there was no similar statutory provision. The majority opinion, by Judge Hammond, rejected the distinction.
. Two of the cases discussed below involve the application ol’ estoppel to bar only the perpetrator's employer from raising limitations as an affirmative defense. Nonetheless, the rationales used by these courts are equally persuasive in the present cases against Merzbacher.
. Because the charges against the teacher were dismissed by the plaintiffs at the trial level, the court limited its discussion to the applicability of equitable estoppel against the school district.
. As the majority opinion indicates, the trial court's grant of summary judgment in these cases, including the ground underlying that grant, was equally applicable to Merzbacher and the Archdiocese. For purposes of the summary judgment, the court drew no distinction between the two defendants. Consistent with the settled principle of Maryland procedure "that an appellate court will ordinarily limit its review of the granting of summary judgment to those grounds relied upon by the trial court,” IA Const. Corp. v. Carney, 341 Md. 703, 708 n. 4, 672 A.2d 650, 653 n. 4 (1996), and cases there cited, the majority draws no distinction between Merzbacher’s reliance on limitations and the Archdiocese’s reliance on limitations. The majority holds that, because the claims are barred against Merzbacher, they "are likewise barred against the Archdiocese” (majority opinion at 543). Consequently, I shall not discuss any possible difference between Merzbacher and the Archdiocese with respect to the bar of limitations.
. See, e.g., Article 47 of the Maryland Declaration of Rights.
Reference
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