Doe v. First United Methodist Church

[This opinion has been published in Ohio Official Reports at 

68 Ohio St.3d 531

.]




 DOE, APPELLANT, v. FIRST UNITED METHODIST CHURCH ET AL., APPELLEES.
         [Cite as Doe v. First United Methodist Church, 

1994-Ohio-531

.]
Statutes of limitations—Cause of action premised upon acts of sexual abuse subject
        to one-year statute of limitations for assault and battery—Minor who is
        victim of sexual abuse has one year from date of reaching age of majority
        to assert any claims against perpetrator, when.
1. A cause of action premised upon acts of sexual abuse is subject to the one-year
        statute of limitations for assault and battery.
2. A minor who is the victim of sexual abuse has one year from the date he or she
        reaches the age of majority to assert any claims against the perpetrator
        arising from the sexual abuse where the victim knows the identity of the
        perpetrator and is fully aware of the fact that a battery has occurred.
     (No. 92-2392—Submitted January 11, 1994—Decided March 30, 1994.)
  APPEAL from the Court of Appeals for Lorain County, Nos. 91CA005260 and
                                      92CA005318.
                                  __________________
        {¶ 1} On July 12, 1991, John Doe, appellant, filed a complaint in the Court
of Common Pleas of Lorain County against Timothy S. Masten, First United
Methodist Church ("First United" or "church"), and the Elyria City School District,
appellees.    The following factual allegations formed the basis for appellant's
complaint.
        {¶ 2} Appellant attended Elyria High School from 1981 through 1984.
During that time, Masten was employed by the school district as a high school choir
director. During that same period, Masten was also employed as a musical director
at First United. Between 1981 and 1984, Masten allegedly initiated numerous
homosexual contacts with appellant, without appellant's consent.                   The sexual
                             SUPREME COURT OF OHIO




conduct occurred both at church and at school. Appellant had not yet reached the
age of majority during the period of sexual abuse.
       {¶ 3} After leaving high school in 1984, appellant began experiencing
severe emotional trauma. In September 1989, appellant sought psychological
counselling for the emotional difficulties he was experiencing. At that time,
appellant was informed that his emotional problems were related to the sexual
activity that had allegedly been forced upon him by Masten.
       {¶ 4} In his complaint, appellant sought recovery against Masten for
battery, negligence, and intentional infliction of emotional distress. Appellant
sought recovery against the school district for its alleged negligence in hiring
Masten and retaining Masten's services, thereby causing appellant's alleged
physical and emotional harm. Appellant sought recovery against First United,
claiming that the church had actual or constructive knowledge of Masten's sexual
contact with underaged persons in general, and with appellant in particular.
Appellant claimed that the church had been negligent and willful in failing to
protect appellant from Masten's sexual conduct, thereby causing appellant's alleged
physical and emotional harm. Appellant also set forth claims against the church
and the school district asserting that these defendants were vicariously liable for the
damages caused by Masten's sexual conduct with appellant.
       {¶ 5} The school district filed a Civ.R. 12(B)(6) motion to dismiss the
complaint, arguing that appellant's claims against the school district were time-
barred by the two-year statute of limitations set forth in R.C. 2305.10 and the one-
year statute of limitations set forth in R.C. 2305.111. The school district argued
that the applicable statute commenced to run at the time the alleged abuse occurred.
Since appellant did not commence suit until July 1991, the school district claimed
that the applicable statutes of limitations barred the action. Appellant responded to
the motion, arguing that his action against the school district was governed by the
statute of limitations set forth in R.C. 2305.10, and that the statute commenced to




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                                      January Term, 1994




run in September 1989 when appellant "discovered" the harm resulting from his
sexual encounters with Masten.
         {¶ 6} On November 4, 1991, the trial court granted the motion and
dismissed all claims against the school district. The trial court noted that since
appellant was a minor at the time the sexual abuse occurred, the applicable statute
of limitations did not begin to run until appellant's eighteenth birthday.1 For
purposes of its decision, the trial court assumed that appellant had reached the age
of majority by 1986 at the latest. Because appellant had not pursued his claims
against the school district within two years after reaching the age of majority, the
trial court found that R.C. 2305.10 barred the action. The trial court held that the
discovery rule was not applicable to suspend the running of the statute through
September 1989, when appellant discovered the harm caused by his sexual
encounters with Masten. In its entry, the trial court specifically determined that
there was "no just reason for delay" of an appeal from the dismissal of appellant's
action against the school district.
         {¶ 7} Appellant appealed to the court of appeals. Meanwhile, appellant's
action against Masten and First United proceeded at the trial court level. The
following additional facts were revealed in appellant's responses to interrogatories.
Appellant was born July 7, 1966. Thus, appellant reached the age of eighteen on
July 7, 1984, presumably one or two months after graduating from Elyria High
School. Between 1981 and 1984, Masten engaged in sexual conduct with appellant
on two hundred to three hundred separate occasions. The incidents of sexual


1. The current version of R.C. 2305.16 provides, in part:
          "Unless otherwise provided in sections 2305.04 to 2305.14 * * * of the Revised Code, if a
person entitled to bring any action mentioned in those sections * * * is, at the time the cause of
action accrues, within the age of minority * * *, the person may bring it within the respective times
limited by those sections, after the disability is removed. * * *"
          The former version of this statute also provided for the tolling of the periods of limitation
set forth in R.C. 2305.04 to 2305.14 until the age of majority. In Ohio, a person reaches majority
when he or she becomes eighteen years of age. R.C. 3109.01.




                                                  3
                                    SUPREME COURT OF OHIO




activity occurred at school, at First United and at Masten's home. After graduating
from high school, appellant became preoccupied with his sexual identity and
suffered from depression, guilt and anxiety. In September 1989, appellant sought
counselling from Dr. Michael F. Pavlak, a psychologist. A document contained in
the record in this case indicates that during appellant's initial consultation with
Pavlak, appellant informed Pavlak of appellant's prior sexual involvement with
Masten.2
         {¶ 8} On November 25, 1991, Masten filed a motion for summary
judgment, arguing that appellant's claims against Masten, all of which arose from
Masten's alleged sexual abuse of appellant, were time-barred by the one-year statute
of limitations set forth in R.C. 2305.111. Masten urged that the statute began to
run on July 7, 1984—the date of appellant's eighteenth birthday. Masten also urged
that the discovery rule could not be applied to suspend the running of the statute
through September 1989 when appellant discovered the extent of the harm caused
by the alleged sexual abuse. On January 10, 1992, First United also filed a motion
for summary judgment. First United argued that the claims against the church were
time-barred by the two-year statute of limitations set forth in R.C. 2305.10, that the
statute commenced to run on appellant's eighteenth birthday, and that the discovery
rule did not suspend the running of the applicable statute of limitations.
         {¶ 9} By entry dated February 3, 1992, the trial court granted the motions
for summary judgment and dismissed the action against Masten and First United.
Applying R.C. 2305.10 and 2305.16, the trial court held that appellant was required
to file his complaint against Masten and First United within two years after
appellant reached the age of majority, i.e., by July 7, 1986. Because appellant had



2. This document appears in the printed record filed by appellant for our consideration pursuant to
S.Ct.Prac.R. IV(1) but is not part of the original papers transmitted from the trial court. In any event,
appellant has invited us to consider this evidence, and appellees have raised no objection to the
document.




                                                   4
                                 January Term, 1994




not pursued his remedies until July 12, 1991, the trial court held that R.C. 2305.10
barred the action.
        {¶ 10} Appellant appealed to the court of appeals from the dismissal of his
action against Masten and First United. On motion, the appellate court consolidated
that appeal with appellant's appeal from the trial court's November 4, 1991 decision
dismissing the claims against the school district.
        {¶ 11} The court of appeals found that appellant's claims against Masten
were governed by the one-year statute of limitations for assault and battery set forth
in R.C. 2305.111. Thus, the court of appeals held that even if a discovery rule was
applied to suspend the running of the statute until September 1989, appellant's
action against Masten (commenced in July 1991) was not timely filed.
        {¶ 12} The court of appeals found that appellant's causes of action for
negligence against First United and the school district were governed by the two-
year statute of limitations set forth in R.C. 2305.10. In determining that appellant's
causes of action against these defendants were time-barred, the court of appeals
stated, in part:
        "Although the offensive conduct at issue occurred repeatedly between 1981
and 1984, all of the applicable statutes of limitations were tolled until Doe's
eighteenth birthday on July 7, 1984. R.C. 2305.16. Doe argues that because he did
not discover the extent of his psychological injuries until he sought counseling in
1989, his cause of action did not accrue until that time.
        "* * *
        "This case does not involve any claim that Doe had repressed his memory
of these incidents with Masten. When Doe turned eighteen he was fully aware of
Masten's prior tortious actions. Although he might not have been aware of the full
extent of his injuries at that time, he knew he had in fact been assaulted. Thus, there
is no reason to toll the running of the statute of limitations. * * *"




                                           5
                                SUPREME COURT OF OHIO




         {¶ 13} Accordingly, the court of appeals affirmed the judgments of the trial
court.
         {¶ 14} The cause is now before this court pursuant to the allowance of a
motion to certify the record.
                                 __________________
         Dubyak & Goldense Co., L.P.A., Joseph A. Dubyak and Paul V. Wolf, for
appellant.
         Thomas P. O'Donnell, for appellee First United Methodist Church.
         Warhola, O'Toole, Loughman, Alderman & Stumphauzer, Dennis M.
O'Toole and Daniel D. Mason, for appellee Elyria City School District.
         Ulmer & Berne, Murray K. Lenson and Timothy M. Fox, for appellee
Timothy S. Masten.
         Licata & Crosby Co., L.P.A., Louis J. Licata and William M. Crosby, urging
reversal for amicus curiae, Adult Support for Incest Survivors of Today.
         Hermanies, Major, Castelli & Goodman and R. Lanahan Goodman; and
Andrew P. Krembs, urging reversal for amicus curiae, Ohio Academy of Trial
Lawyers.
                                 __________________
         DOUGLAS, J.
         {¶ 15} The issue in this appeal is whether the causes of action asserted
against Masten, First United and the school district were timely filed pursuant to
the applicable statutes of limitations. Given the procedural posture of this case, we
must accept the allegations in appellant's complaint to be true at least with respect
to the school district, since that defendant was granted a Civ.R. 12(B)(6) motion to
dismiss the complaint for failure to state a claim. See Mitchell v. Lawson Milk Co.
(1988), 

40 Ohio St.3d 190, 192

, 

532 N.E.2d 753, 756

, and Greeley v. Miami Valley
Maintenance Contrs., Inc. (1990), 

49 Ohio St.3d 228, 229

, 

551 N.E.2d 981, 982

.
With regard to Masten and First United, the relevant facts must be considered in a




                                          6
                                      January Term, 1994




light most favorable to appellant, who opposed the motions for summary judgment
at the trial court level. See Civ.R. 56.
                                                  I
         {¶ 16} We begin our discussion by examining which statute of limitations
applies to appellant's causes of action against Masten. Appellant contends, and the
trial court apparently agreed, that appellant's action against Masten was an action
for bodily injury arising out of negligence and that, therefore, the action was
governed by the two-year period of limitations set forth in R.C. 2305.10.
Conversely, Masten contends, and the court of appeals held, that appellant's action
against Masten was governed by the R.C. 2305.111 one-year period of limitations
for assault and battery.3
         {¶ 17} To determine which of these two statutes applies to appellant's
claims against Masten, it is necessary to determine the true nature or subject matter
of the acts giving rise to the complaint. In Hambleton v R.G. Barry Corp. (1984),

12 Ohio St.3d 179, 183

, 12 OBR 246, 249, 

465 N.E.2d 1298, 1302

, this court stated
that "in determining which limitation period will apply, courts must look to the
actual nature or subject matter of the case, rather than to the form in which the
action is pleaded. The grounds for bringing the action are the determinative factors,
the form is immaterial." Furthermore, in Love v. Port Clinton (1988), 

37 Ohio St.3d 98

, 

524 N.E.2d 166

, syllabus, a majority of this court held that "[w]here the
essential character of an alleged tort is an intentional, offensive touching, the statute
of limitations for assault and battery governs even if the touching is pled as an act
of negligence." In Love, the court recognized that nearly any assault and battery
can be creatively pled as a claim for negligence, but that the form of the pleading




3. R.C. 2305.111 became effective September 26, 1984, after the incidents of sexual abuse, but
before appellant filed his complaint in this case. The one-year statute of limitations for assault and
battery was formerly part of R.C. 2305.11. See 139 Ohio Laws, Part I, 2153.




                                                  7
                             SUPREME COURT OF OHIO




does not govern the question as to which statute of limitations is to be applied. 

Id. at 99

, 

524 N.E.2d at 168

.
       {¶ 18} In his complaint, appellant set forth three separate claims against
Masten.    Appellant sought recovery on theories of battery, negligence, and
intentional infliction of emotional distress.     However, all these claims were
premised upon Masten's alleged sexual abuse of appellant. Specifically, the claims
asserted against Masten were premised upon Masten's having repeatedly initiated
and engaged in homosexual contacts with appellant without appellant's consent.
Masten's repeated acts of sexual contact with appellant were clearly intentional acts
of offensive touching—sexual abuse is not something that occurs by accident. The
sexual conduct allegedly forced upon appellant occurred on two hundred to three
hundred separate occasions and continued for a three-year period.
       {¶ 19} Considering the foregoing, we believe that the essential character of
appellant's claims against Masten entailed intentional acts of offensive contact.
Therefore, we find that appellant's causes of action against Masten were subject to
the one-year period of limitations for assault and battery. 

Love, supra,

 syllabus.
The fact that appellant pled negligence and intentional infliction of emotional
distress cannot be allowed to mask or change the fundamental nature of appellant's
causes of action which are predicated upon acts of sexual battery. As this court has
previously recognized:
       "'[T]hrough clever pleading or by utilizing another theory of law, the assault
and battery cannot be [transformed] into another type of action subject to a longer
statute of limitations as it would circumvent the statute of limitations for assault
and battery to allow that to be done.'" 

Love, supra,

37 Ohio St.3d at 100

, 

524 N.E.2d at 168

, quoting Grimm v. White (1980), 

70 Ohio App.2d 201, 203

, 

24 O.O.3d 257, 258

, 

435 N.E.2d 1140, 1141-1142

.
       {¶ 20} Accordingly, we hold that a cause of action premised upon acts of
sexual abuse is subject to the one-year statute of limitations for assault and battery.




                                          8
                                January Term, 1994




                                          II
       {¶ 21} With respect to appellant's claims against the church and the school
district for the alleged negligence of these defendants in failing to protect appellant
from Masten's sexual behavior, it appears, given appellant's allegation of physical
harm, that the applicable statute of limitations is found in R.C. 2305.10, which
provides, in part:
       "An action for bodily injury or injuring personal property shall be brought
within two years after the cause thereof arose."
       {¶ 22} Appellant also sought to hold the church and the school district
vicariously liable for Masten's conduct. The statute of limitations that applies to
these claims for derivative liability is the same statute that applies to appellant's
action against Masten, to wit, the one-year statute of limitations for assault and
battery. See, generally, 

Grimm, supra,

70 Ohio App.2d at 204

, 

24 O.O.3d at 258

-
259, 

435 N.E.2d at 1142

.
                                          III
       {¶ 23} Having identified in Part I which statute of limitations applies to the
claims asserted against Masten, and, in Part II, which statute applies to the causes
of action against the school district and First United, the next question is when the
applicable periods of limitation commenced. In this regard, the court of appeals
correctly held that pursuant to R.C. 2305.16, neither of the applicable statutes of
limitations could have been triggered on any of appellant's claims before appellant
reached the age of majority in July 1984. However, the controversy in this appeal
is whether application of a discovery rule would toll the statutes of limitations
beyond the date of appellant's eighteenth birthday.
       {¶ 24} A rule of discovery was first promulgated by this court in the medical
malpractice context, but the discovery rule has been generally accepted and applied
in a number of areas of the law. See Browning v. Burt (1993), 

66 Ohio St.3d 544, 558

, 

613 N.E.2d 993

, 1004. See, also, Shover v. Cordis Corp. (1991), 

61 Ohio 9

                             SUPREME COURT OF OHIO




St.3d 213, 223-227, 

574 N.E.2d 457, 464-467

 (Douglas, J., dissenting). For
instance, we have crafted a rule of discovery in medical malpractice cases (see, e.g.,
Allenius v. Thomas [1989], 

42 Ohio St.3d 131

, 

538 N.E.2d 93

), legal malpractice
cases (see, e.g., Skidmore & Hall v. Rottman [1983], 

5 Ohio St.3d 210

, 5 OBR 453,

450 N.E.2d 684

), cases involving bodily injury caused by exposure to asbestos (see
O'Stricker v. Jim Walter Corp. [1983], 

4 Ohio St.3d 84

, 4 OBR 335, 

447 N.E.2d 727

), cases involving DES-related injuries (Burgess v. Eli Lilly & Co. [1993], 

66 Ohio St.3d 59

, 

609 N.E.2d 140

), and cases involving injuries arising out of the
negligence of a hospital in credentialing a physician (Browning, supra).           In
Browning, 

66 Ohio St.3d at 559

, 613 N.E.2d at 1005, we were careful to note that,
"[b]y its very nature, the discovery rule (concept) must be specially tailored to the
particular context in which it is to be applied."
       {¶ 25} Given the facts of this case, even if this court were to adopt, now or
in the future, a rule of discovery for cases of sexual abuse, the rule would not apply
to toll the periods of limitations beyond appellant's eighteenth birthday. Here, the
facts clearly establish that at the time appellant reached the age of majority,
appellant knew that he had been sexually abused by Masten. Masten allegedly
initiated homosexual conduct with appellant on two hundred to three hundred
separate occasions without appellant's consent. During the period of sexual abuse,
appellant was fourteen to seventeen years of age. Apparently, the last act of sexual
battery occurred just months prior to appellant's eighteenth birthday.          After
graduating from high school, appellant became preoccupied with his sexual identity
and suffered from depression, guilt, anger and anxiety. Appellant eventually sought
psychological help in September 1989, and told his psychologist of the prior sexual
encounters with Masten. At oral argument, counsel for appellant conceded that this
is not a case involving "repressed memory"—i.e., where the victim of childhood
sexual abuse represses memories of the traumatic events only to discover, at some
later date, the fact that he or she had been sexually abused.




                                          10
                                      January Term, 1994




         {¶ 26} In July 1984, upon reaching the age of majority, appellant knew that
he had been sexually abused, and he knew the identity of the perpetrator. Although
appellant may not have discovered the full extent of his psychological injuries until
September 1989, the fact that appellant was aware upon reaching the age of
majority that he had been sexually abused by Masten was sufficient to trigger the
commencement of the statute of limitations for assault and battery. Nothing in law,
or in fact, prevented appellant from asserting his claims against Masten during the
applicable statutory limitations period.               We find that the one-year statute of
limitations for appellant's claims against Masten commenced on July 7, 1984, and,
thus, appellant's action against Masten (filed on July 12, 1991) was time-barred.4
We hold that a minor who is the victim of sexual abuse has one year from the date
he or she reaches the age of majority to assert any claims against the perpetrator
arising from the sexual abuse where the victim knows the identity of the perpetrator
and is fully aware of the fact that a battery has occurred.
         {¶ 27} Since appellant's claims against Masten were barred by the
applicable statute of limitations, the claims against the church and the school district
for derivative liability based upon Masten's conduct were time-barred as well. See
discussion in Part II. However, as we have previously indicated, appellant also
asserted independent claims against the church and school district arising from the
alleged negligence of these defendants in failing to take some action to protect
appellant from Masten's conduct. Id. These claims are based upon the church's and
the school district's own acts or omissions and have nothing to do with any theory
of derivative liability. Thus, we recognize that the facts and events which triggered
the statute of limitations on appellant's claims for sexual abuse did not necessarily


4. Appellant has suggested that applying the discovery rule in this case would dictate that the statute
of limitations commenced in September 1989 when appellant discovered the extent of the harm
caused by his homosexual encounters with Masten. It should be noted that even if this were true,
the one-year period of limitations governing appellant's claims against Masten would have expired
before appellant filed the action on July 12, 1991.




                                                  11
                             SUPREME COURT OF OHIO




trigger the R.C. 2305.10 two-year period of limitations on appellant's independent
negligence claims against the church and the school district. See, generally,

Browning, supra,

66 Ohio St.3d 544

, 

613 N.E.2d 993

. However, appellant has
never claimed or argued that his knowledge of the sexual abuse was insufficient to
apprise him of the possibility that the church or the school district had been
negligent in failing to protect him from Masten. Under these circumstances, we are
left to assume that the events that triggered the one-year statute of limitations for
assault and battery were no different from the events that triggered the two-year
statute of limitations that applies to appellant's negligence causes of action against
the church and the school district. Therefore, the two-year period of limitations
commenced in July 1984, and appellant's negligence claims against the church and
the school district are barred by R.C. 2305.10.
                                         IV
       {¶ 28} Courts in other jurisdictions have considered issues concerning the
rule of discovery and its application in cases brought by adult survivors of
childhood sex abuse. See, e.g., Tyson v. Tyson (1986), 

107 Wash.2d 72

, 

727 P.2d 226

 (discovery rule not applied); E.W. v. D.C.H. (1988), 

231 Mont. 481

, 

754 P.2d 817

 (discovery rule not applied to toll the statute of limitations where victim of
sexual molestation as a child knew of the sexual abuse upon reaching the age of
majority); Osland v. Osland (N.D.1989), 

442 N.W.2d 907

 (discovery rule applied
in case of childhood sex abuse); Meiers-Post v. Schafer (1988), 

170 Mich.App. 174

,

427 N.W.2d 606

 (statute of limitation tolled by legal disability in cases where the
child-victim of an illicit sexual relationship represses memory of the events);
Hammer v. Hammer (App.1987), 

142 Wis.2d 257

, 

418 N.W.2d 23

 (discovery rule
applicable where victim of incest from the age of five through fifteen may not have
appreciated the wrongfulness of her father's conduct); Doe v. LaBrosse (R.I.1991),

588 A.2d 605

 (discovery rule may be applicable where victims of incest from a
very early age may not have discovered the causal relationship between the sexual




                                         12
                                       January Term, 1994




abuse and the injuries they suffered as adults); and Peterson v. Bruen (1990), 

106 Nev. 271

, 

792 P.2d 18

 (no statute of limitations controls in cases involving
childhood sexual abuse where it is shown by clear and convincing evidence that the
plaintiff was sexually abused by the defendant). See, also, Doe v. R.D. (1992), 

308 S.C. 139

, 

417 S.E.2d 541

; Lovelace v. Keohane (Okla. 1992), 

831 P.2d 624

;
Callahan v. State (Iowa 1990), 

464 N.W.2d 268

; Daly v. Derrick (1991), (deleted
from official publication at 

230 Cal.App.3d 1349

) 

281 Cal.Rptr. 709

; Evans v.
Eckelman (1990), 

216 Cal.App.3d 1609

, 

265 Cal.Rptr. 605

; Jones v. Jones (1990),

242 N.J.Super. 195

, 

576 A.2d 316

; Franke v. Geyer (1991), 

209 Ill.App.3d 1009

,

568 N.E.2d 931

; Hewczuk v. Sambor (E.D.Pa. 1992), 

803 F.Supp. 1063

; and
Johnson v. Johnson (N.D. Ill. 1988), 

701 F.Supp. 1363

.5
         {¶ 29} Some of the cases wherein the discovery rule has been applied to toll
the statute of limitations for claims of childhood sex abuse involve issues of
repressed memory or psychological disability that precluded the victim from
asserting the claim during the applicable statutory limitations period. For example,
in 

Osland, supra,

442 N.W.2d 907

, the North Dakota Supreme Court applied a rule
of discovery to toll the applicable statute of limitations in a case brought by a
twenty-two-year-old plaintiff seeking recovery against her father for incestuous
sexual abuse that occurred when the plaintiff was between the ages of ten and
fifteen. In Osland, the court recognized that the plaintiff had suffered from severe
emotional trauma which prevented her from being able to "fully understand or
discover her cause of action during the applicable statutory limitations period." 

Id. at 909

.6



5. Several states have amended their laws to specifically establish a rule of discovery for civil claims
of childhood sexual abuse. See, e.g., Alaska Stat. 09.10.140(b); Cal.Civ.Proc.Code 340.1;
Minn.Stat.Ann. 541.073; Mont.Code Ann. 27-2-216; and Wash.Rev. Code Ann. 4.16.340. See,
also, Doe v. R.D., supra, 

308 S.C. 139

, 

417 S.E.2d 541

.
6. The court in Osland apparently accepted the proposition that an action for sexual abuse is an
action governed by the statute of limitations for assault and battery.




                                                  13
                                    SUPREME COURT OF OHIO




         {¶ 30} Unlike Osland and a number of the cases we have considered in
reaching the conclusions we reach here today, the case at bar does not involve any
impediment which might have precluded appellant from asserting his claims in a
timely fashion. Here, appellant knew of Masten's tortious conduct at the time it
occurred and this knowledge continued undiminished throughout the applicable
statutory limitations period. This is not a case involving the sexual abuse of a child
of tender years. This is not a case involving incest. This is not a case involving
repressed memory or psychological disability. At some future date, on facts
different from those presented in the case at bar, this court may very well consider
whether to apply a rule of discovery to toll an applicable statute of limitations in a
case involving childhood sexual abuse. However, the facts of this case do not
require or permit us to reach that question.
                                                   V
         {¶ 31} For the reasons set forth herein, we affirm the judgment of the court
of appeals.7
                                                                                Judgment affirmed.
         MOYER, C.J., A.W. SWEENEY, WRIGHT, RESNICK, F.E. SWEENEY and
PFEIFER, JJ., concur.
                                      __________________




7. Appellant has raised a number of constitutional issues in support of his argument that the
discovery rule should be applied to toll the statute of limitations until appellant discovered the extent
of his injuries and the causal connection between those injuries and the alleged sexual abuse.
However, appellant failed to raise these issues at the trial court level and, thus, the court of appeals
refused to consider appellant's arguments. We find no abuse of discretion in this regard. Moreover,
nothing prohibited appellant from asserting his claims within the period provided by the applicable
statutes of limitations, thereby preserving the constitutional rights in question.




                                                   14