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Docket Nos. 87834, 87839 cons.-Agenda 16-January 2000.

GINA TRIMBLE PARKS et al., Appellees, v. RAYMOND 
KOWNACKI et al., Appellants.

Opinion filed August 10, 2000.

JUSTICE RATHJE delivered the opinion of the court:

The issue presented is whether plaintiff's second amendedcomplaint, which contains 14 counts relating to her alleged sexualabuse by a Roman Catholic priest, is barred by the statute oflimitations.

BACKGROUND

Summary of Proceedings Below

On February 28, 1995, plaintiffs Gina and Douglas Parks fileda complaint against defendants Reverend Raymond Kownacki, St.Martin of Tours Roman Catholic Church (the Parish), and theCatholic Diocese of Belleville (the Diocese) in the circuit court ofSt. Clair County. Plaintiffs amended their complaint twice, andplaintiffs' second amended complaint (the complaint) contained14 counts. Defendants filed motions for summary judgment (735ILCS 5/2-1005(b) (West 1998)) and motions to dismiss (735 ILCS5/2-615, 2-619(a)(5) (West 1998)). The trial court denied themotions for summary judgment but dismissed the action, findingthat plaintiffs' claims were barred by the statute of repose forchildhood sexual abuse claims (735 ILCS 5/13-202.2 (West1992)) and the statute of limitations for personal injury claims(735 ILCS 5/13-202 (West 1998)). The appellate court affirmedas to counts XIII and XIV of the complaint, which were loss ofconsortium claims made by Douglas. 305 Ill. App. 3d 449, 462.The appellate court reversed as to counts I through XI, holding thatequitable estoppel precluded defendants from asserting a statute oflimitations defense and that Gina was under a legal disability, andremanded the cause for further proceedings. 305 Ill. App. 3d at462 . Defendants filed petitions for leave to appeal, which weallowed (177 Ill. 2d R. 315(a)). Plaintiffs do not challenge thedismissal of counts XIII and XIV. As a result, those counts are notbefore this court.⁽¹⁾

Complaint

The following facts are alleged in the complaint, and weaccept them as true for purposes of our review of the rulings ondefendants' motions to dismiss. See Calloway v. Kinkelaar, 168Ill. 2d 312, 325 (1995).

In 1970, Kownacki, an employee of the Diocese, was assignedto work as a Roman Catholic parish priest at the Church of St.Francis Xavier in St. Francisville. Plaintiff⁽²⁾ and her family weremembers of that church. Kownacki employed plaintiff as ahousekeeper at the St. Francis Xavier rectory. Plaintiff was 15years old in 1970.

One day during the fall of 1970, plaintiff was at the rectorycleaning Kownacki's bedroom when Kownacki interrupted toshow her a "little voodoo trick." Kownacki instructed plaintiff tochant, and he turned off the lights. He then raped plaintiff.Afterwards, Kownacki told plaintiff that he loved her and that sheshould trust him. He threatened that the Roman Catholic Churchwould excommunicate plaintiff and her family if she revealed thathe had sexually assaulted her. From the time of this warning untilrecently, plaintiff has felt that she could not report Kownacki toanyone and that she had sinned through her relationship withKownacki. The rape negatively affected both plaintiff's academicperformance and her emotional state.

In early 1971, Kownacki told plaintiff that he was beingtransferred to the Parish, which is located in Washington Park. Heconvinced plaintiff's parents that plaintiff should accompany himto the Parish so that she could go to a school in Highland, whereshe would receive a "higher" education and develop her artistictalents. Kownacki also provided financial assistance to plaintiff'sfamily. Plaintiff did not want to accompany Kownacki but did sobecause he had complete psychological control, domination, andauthority over her. After Kownacki arranged for plaintiff to moveto the Parish, he also arranged for plaintiff, who was 16, toaccompany him on a trip to his ailing mother's home inPinkneyville. There, plaintiff assisted Kownacki's mother with thecleaning. While they were there, Kownacki touched plaintiff in asexual manner.

In the summer of 1971, plaintiff moved with Kownacki to therectory at the Parish. The Parish is supervised by the Diocese, andKownacki was an employee of the Parish. While there, plaintiffserved as his housekeeper and his mistress. In addition, sheattended St. Paul's Catholic High School. When Kownackiaccepted the responsibility of plaintiff's care and education, hetook on the role of her guardian, even though he was not given thattitle by a court. Kownacki instructed plaintiff to tell anyone whoasked about their relationship that she and Kownacki were distantcousins. He also threatened to send nude photographs of plaintiffto her parents if she refused Kownacki's sexual advances or toldanyone about the abuse. Moreover, after he took her to a sexuallyexplicit movie, Kownacki forced plaintiff to perform fellatio onhim. Fellatio then became his preferred method of sexualgratification. In the fall of 1972, plaintiff began having problemsat school. The principal and a supervising employee of the Dioceseboth asked her if Kownacki was sexually abusing her. Plaintiffdenied that she had been abused.

In January 1973, plaintiff had sexual intercourse with a boywhom she had been dating for over a year. When she returned tothe rectory, Kownacki was in a drunken, angered state and accusedher of having had sex with the boy after Kownacki had instructedher not to have sexual contact with anyone but him. Kownackithen held a gun to his head. When plaintiff said that she would nolonger have sex with Kownacki, he put down the gun and held aknife to her throat. He then pointed the gun at her and forced herto drive him in the car, where he threatened to kill both her andhimself. When they returned home, Kownacki raped her and toldher never to see the boy again.

Plaintiff later learned that she was pregnant. Kownacki hadtold her that he had been given a vasectomy in Guatemala.Consequently, she believed that the boy she had dated was the onewho had impregnated her. When she told the boy, the boy told herthat he would marry her and take care of her and the baby. Plaintiffreturned home late that day, and Kownacki "flew into a drunkenrage." He beat her head against the wall and beat her with a metalchair. Plaintiff then told Kownacki that she was pregnant and thatshe planned to marry the boy. She swore that she would keepKownacki's sexual abuse secret. Kownacki got angry again, andplaintiff knocked him unconscious and attempted to run away. Thepolice returned her to Kownacki. Kownacki then gave plaintiff aquinine mixture to drink that he characterized as a potion "used inCentral America to abort babies that are not wanted." Afterdrinking the mixture, plaintiff felt tired and weak so she went tolie down. Kownacki then entered her bedroom and removed herslacks and underpants. He reached into her vagina and squeezedher uterus.

The next thing that plaintiff recalled was awakening to findherself lying in a pool of blood. She found her way back to herparents' home, where she aborted a dead fetus shortly after shearrived. In March of 1973, plaintiff was treated at a hospital whereshe had a dilation and curettage. She was also treated forendometriosis and toxemia. At the hospital, plaintiff was told that,had she been brought to the hospital any later, she would havedied.

Plaintiff and her parents returned to the rectory at the Parishin approximately April 1973 and gathered her belongings. Whilethey were there, Kownacki told them that no one could "touchhim" and that plaintiff's story would not be believed. He warnedplaintiff that she could not escape him.

Father Dean J. Braun, an employee of the Diocese, hadbecome the new parish priest at St. Francis Xavier after Kownackiwas transferred. He took plaintiff and her parents to meet withBishop Albert Zuroweste, who was also an employee of theDiocese. Plaintiff told Zuroweste of Kownacki's abuse. Zurowestetold plaintiff that he would take care of the matter. After themeeting, Braun advised plaintiff and her family that Zurowestewould not discipline Father Kownacki and told her that she shouldforgive Kownacki and forget about the abuse. In fact, Zurowestedid not discipline Kownacki but instead assigned him to a newparish in Salem. Neither Zuroweste nor Braun ever contacted thecriminal authorities about Kownacki's actions.

After the meeting, Braun took plaintiff to the rectory at St.Mary's Church in Mount Carmel, where he anointed her with oiland again told her to forgive and forget. Braun intended that theceremony would cause plaintiff to forgive and forget Kownacki'sabuse and prevent her from pursuing claims against Kownacki andthe Diocese. Braun's actions changed plaintiff's brain functions;plaintiff felt "as though a huge burden had been removed from hershoulders."

Since the ceremony, Kownacki has intentionally intimidatedplaintiff twice: by letter and through a contact by an unknownindividual to plaintiff's husband. Kownacki also had braggedabout having connections to organized crime. Braun advisedplaintiff that the CIA was investigating Kownacki.

Because of plaintiff's fear of Kownacki, Braun's ceremony,Zuroweste's failure to discipline Kownacki, plaintiff's failure tounderstand that Kownacki had caused her psychological injury, thefailure of Zuroweste and Braun to report Kownacki to the police,and plaintiff's repressed memory of many events, plaintiff was"psychiatrically incapable of pursuing her claims *** prior to thefiling of this complaint." Plaintiff did not realize that her sexualrelationship with Kownacki was sexual abuse or that she had beeninjured by that abuse. Both Braun's ceremony and the failure ofZuroweste to discipline Kownacki acted as a psychiatric restrainton plaintiff, and she was unable "to make any decisions, orexercise judgment, about any of the sexual and physical abuse thatshe suffered at the hands of Father Kownacki."

In late 1994, plaintiff learned that Marjorie Menson ofCatholic Social Services was trying to contact her. When plaintiffspoke to Menson in early 1995, Menson said that she wascontacting plaintiff on behalf of the Diocese. Menson askedplaintiff if Kownacki had abused plaintiff, and plaintiff answeredin the affirmative. This contact caused plaintiff's memories of theabuse to resurface and led her to relive the experiences of theabuse. When plaintiff discovered that her disclosure had led toKownacki's removal from his ministry, plaintiff feared and stillfears retaliation. The psychiatric restraint created by Braun'sceremony was in place until that 1995 contact with the Diocese.Since the ceremony, plaintiff suffered from a "limited degree ofmental incompetence" that "constituted a legal disability resultingin [plaintiff's] psychiatric inability to pursue a legal remedy ***until such time as it was removed when the Diocese contacted[plaintiff] in early 1995."

Plaintiff currently suffers from post-traumatic stress disorder.She has suffered several other injuries as a result of defendants'actions and inactions, including physical injuries relating to herforced abortion, mental distress and anguish, loss of self-esteem,and loss of enjoyment of life. Plaintiff was also unable to developher artistic talents and has lost income and earning potential. Shehas suffered and continues to suffer from depression. In addition,plaintiff has suffered from various physical injuries and hassuffered nightmares and lost sleep. Her companionship with herhusband, parents, and siblings has also been affected negatively bydefendants.

Based on these facts, plaintiff argues several theories ofliability against defendants. Plaintiff advances claims againstKownacki of childhood sexual abuse, breach of fiduciary duty,intentional infliction of emotional distress, negligence, and willfuland wanton conduct. Plaintiff's claims against the Parish arebreach of fiduciary duty, respondeat superior, failure to warn,negligence, negligent supervision and retention, and willful andwanton conduct. Plaintiff makes these same claims against theDiocese and also claims negligent infliction of emotional distress.

The only claim that relates to any events after 1973 is theportion of count XI that alleges negligent infliction of emotionaldistress based upon the Diocese's 1995 contact with plaintiffthrough Marjorie Menson. Plaintiff alleges that the Diocese had aduty to refrain from making such an inquiry about Kownacki'sabuse without first assessing its effect on plaintiff. The inquirycaused plaintiff to suffer severe emotional distress and physicalinjuries.

Motions to Dismiss

Kownacki, the Parish, and the Diocese all filed motions todismiss under section 2-619(a)(5) of the Code of Civil Procedure(the Code) (735 ILCS 5/2-619(a)(5) (West 1998)), alleging thatplaintiff's claims were barred by the statute of limitations and thestatute of repose. The alleged abuse occurred from 1971 to 1973.Plaintiff turned 18 in 1973; however, she did not file a complaintuntil 1995, 22 years later. Defendants alleged that the complaintmakes clear that plaintiff was aware of her claims when she turned18. The Diocese and the Parish also claimed that the complaintshould be dismissed under section 2-615 of the Code (735 ILCS5/2-615 (West 1998)) because they were not vicariously liable forKownacki's sexual abuse for two reasons: (1) the sexual abusewas outside of the scope of his employment; and (2) defendantsowed plaintiff no duty. Additionally, the Diocese and the Parishargued that judicial inquiry into the hiring and discipline ofKownacki by the Diocese and/or the Parish would constituteunconstitutional excessive entanglement with religion. Inparticular, the Diocese challenged count XI of the complaint,negligent infliction of emotional distress, arguing that theallegations were contradictory.

Plaintiff responded to defendants' motions to dismiss. Inaddition to directly responding to defendants' allegations, plaintiffargued that plaintiff's legal disability tolled the statute oflimitations and that equitable estoppel precluded defendants fromraising a statute of limitations defense.

The affidavit of Dr. Frank Ochberg is attached to plaintiff'sresponse. Ochberg, a psychiatrist and neurologist, affies thatplaintiff was under the psychological power of Kownacki duringthe entire time that Kownacki abused her. According to Ochberg,plaintiff "regained her ability to report *** her victimization" afterthe abortion, but Zuroweste's "promise to take care of theproblem" and Braun's "ritualistic ceremony" combined to"psychiatrically prevent[]" plaintiff from pursuing a remedy. Theceremony rendered plaintiff unable to make any decisions orexercise any judgment concerning Kownacki's sexual abuse. Asa result, plaintiff was "psychiatrically incapable of taking anyaction" against defendants from the time of the ceremony until1995, when the Diocese contacted plaintiff. Plaintiff sufferedsymptoms of post-traumatic stress disorder before December of1994 but since the Diocese contact has developed "full blown"post-traumatic stress disorder. Plaintiff did not comprehend theconnection between the disorder and the sexual abuse for 21 years,and she "has suffered from a limited degree of mentalincompetence between the time that Father Braun anointed herwith oil and told her to forgive and forget Father RaymondKownacki in 1973 and her conversation with the social worker,hired by the Diocese of Belleville, in early 1995." Ochbergconcludes that plaintiff suffered a "legal disability resulting in[her] psychiatric inability to pursue a legal remedy."

ANALYSIS

Defendants ask us to reverse the appellate court, whichreversed the trial court's dismissal of plaintiff's complaint. Wereview de novo the granting of a section 2-619 motion to dismiss.Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d112, 116 (1993). Under section 2-619(a)(5) of the Code of CivilProcedure, a defendant moves to dismiss because the "action wasnot commenced within the time limited by law." 735 ILCS2-619(a)(5) (West 1998). We must determine whether theexistence of a genuine issue of material fact should have precludedthe dismissal or, absent such issue, whether dismissal is proper asa matter of law. Doyle v. Holy Cross Hospital, 186 Ill. 2d 104,109-10 (1999).

Claims Based on Alleged Sexual Abuse

Statute of Limitations

Defendants argue that the complaint is barred by the statute oflimitations because plaintiff failed to file her complaint within twoyears of discovering that she had been sexually abused and that shehad been harmed by that abuse. Although plaintiff admits that shewas always aware of the abuse since the time it occurred, sheargues that the statute of limitations did not attach until the 1995contact because, until then, she was not aware of the connectionbetween the abuse and her injuries.

An action for personal injury must be filed "within 2 yearsnext after the cause of action accrued." 735 ILCS 5/13-202 (West1998). If the plaintiff is a minor, "he or she may bring the actionwithin 2 years after the person attains the age of 18 years." 735ILCS 5/13-211 (West 1998).

Under the discovery rule, the limitations period begins to runwhen the party seeking relief "knows or reasonably should knowof his injury and also knows or reasonably should know that it waswrongfully caused." Knox College v. Celotex Corp., 88 Ill. 2d 407,415 (1981). The limitations period begins running even if theplaintiff does not know that the misconduct was actionable. KnoxCollege, 88 Ill. 2d at 415. When a plaintiff alleging childhoodsexual abuse was aware of the abuse as it occurred and does notallege that she repressed the memories of that abuse, thelimitations period begins to run at the time the plaintiff reaches theage of majority. Clay v. Kuhl, 189 Ill. 2d 603, 610 (2000).

In Clay, the plaintiff alleged that she had been sexually abusedby a priest from childhood into her teenage years. The abuse tookplace in the early seventies. The complaint was not brought until1996. Although the plaintiff admitted that her memories of theabuse had not been repressed, she claimed that the statute oflimitations was tolled because she did not connect her injurieswith the abuse until 1994. Her psychologist affied that " 'she wasunable to comprehend that the tragic course that her life was on,until quite recently, was, at least in part, due to what the priest didto her.' " Clay, 189 Ill. 2d at 609.

This court determined that, because the plaintiff was "alwaysaware of the misconduct charged," did not claim that hermemories of the abuse were repressed, and postponed filing hercomplaint until 13 years after she reached the age of majority, hercomplaint was time-barred as a matter of law. Clay, 189 Ill. 2d at610. Even though some of the plaintiff's injuries were not fullyapparent until years after the abuse, this court did "not believe thatthe plaintiff's alleged failure to fully discover the nature of herinjuries is sufficient to delay the running of the limitations period."Clay, slip op. at 6.

The facts in this case are almost identical to Clay. Plaintiffalleges that Kownacki, a priest, sexually abused plaintiff in theearly seventies when plaintiff was a teenager. The last incident ofabuse occurred in early 1973. Although the complaint does notallege plaintiff's exact date of birth, it does allege that she was 15in 1970 and 16 in early 1971. Therefore, plaintiff had reached theage of 18 by early 1973. She did not file her complaint until 1995.

Like the plaintiff in Clay, plaintiff alleges only that she failedto make the connection between her injury and the abuse, not thatshe did not remember that she had been abused. While she allegesthat she did not know that the sexual relationship was wrong, it isclear from her actions-telling her parents, reporting Kownacki toZuroweste-that she knew that Kownacki had wronged her.Plaintiff did plead that some details relating to the abuse wererepressed; however, she does not claim that this is the reason thatthe limitations period is tolled. Instead, she contends that herfailure to realize that the abuse had caused her injuries tolled thelimitations period until 1995.

Ochberg, like the psychiatrist in Clay, affied that plaintiff didnot understand the connection between her post-traumatic stressdisorder and the sexual abuse for 21 years. Although plaintiff wasnot aware of her post-traumatic stress disorder until recently, oneparticular injury that plaintiff claims, the forced abortion,obviously was apparent when plaintiff went to the hospital andwas given a dilation and curettage. Plaintiff reasonably shouldhave been aware of that injury at that time as well as its likelycause. As discussed above, she was also aware that Kownacki haddone something wrong to her. Because in this case it is even moreevident than in Clay that plaintiff was aware of both the cause andsome injury, we hold that plaintiff's failure to understand theconnection between the abuse and other injuries does not toll thestatute of limitations. As a result, the claims arising fromplaintiff's alleged sexual abuse are time-barred.

Legal Disability

Plaintiff claims that, even if her claims would have been time-barred, the limitations period was tolled because she was under alegal disability until the 1995 contact with the Diocese. Accordingto plaintiff, because of her psychiatric condition, she was unableto pursue a remedy. She argues that this condition is a legaldisability sufficient to toll the statute of limitations under section13-211 of the Code (735 ILCS 5/13-211 (West 1998)).

When a potential plaintiff has a legal disability, the statute oflimitations is tolled until the plaintiff is no longer disabled. 735ILCS 5/13-211 (West 1998). A "person under legal disability" isdefined as a person who has some disability or incapacity thatprevents her from being "fully able to manage his or her person orestate." 5 ILCS 70/1.06 (West 1998). Although a person need notbe adjudicated disabled to have a legal disability (Clark v. Jae EunHan, 272 Ill. App. 3d 981, 987-88 (1995); Estate of Riha v. ChristHospital, 187 Ill. App. 3d 752, 755 (1989)), she must have someargument that her disability is one contemplated by the legislature(see Bruso v. Alexian Brothers Hospital, 178 Ill. 2d 445, 456-57(1997)).

Here, plaintiff alleges only that defendants' conduct renderedher "psychiatrically unable" to take legal action. She does notallege that she has had any difficulty managing her person or herestate. In fact, plaintiff specifically admitted in oral argument thatshe does not make this claim. She argues only that the "ritual"performed by a priest to induce her to forgive and forget the abuseprevented her from filing a complaint. The gist of plaintiff's claimis that, because she had some mental impairment that kept herfrom filing a complaint and because that impairment was causedby defendants, the limitations period should be tolled.

Plaintiff's claim must fail. She admits that the onlymanifestation of her alleged "legal disability" consists of aninability to file a civil complaint. The inability to pursue a legalremedy does not, standing alone, fall into any recognized categoryof legal disability. Moreover, the fact that defendants may havebeen responsible for plaintiff's inability to pursue legal relief doesnot transform that inability into a legal disability. We thereforehold that plaintiff has not pleaded facts sufficient to indicate thatthe limitations period should be tolled.

Equitable Estoppel

Plaintiff next argues that, even if her claims are barred by thestatute of limitations, equitable estoppel precludes defendants fromasserting a statute of limitations defense. Plaintiff contends thatdefendants should not profit from acts that they have committedthat have harmed plaintiff. Plaintiff argues that, becausedefendants' actions and inactions caused plaintiff to be unablepsychologically to file a complaint, they should be estopped fromasserting a statute of limitations defense. Plaintiff also claims thatthe fiduciary duty between plaintiff and Kownacki requires thatequitable estoppel be applied. She bases this argument on thepremise that a fiduciary can commit fraud by failing to reveal factsand need not commit an affirmative misrepresentation.

To establish equitable estoppel, the party claiming estoppelmust demonstrate that: (1) the other party misrepresented orconcealed material facts; (2) the other party knew at the time theymade their representations that the representations were untrue; (3)the party claiming estoppel did not know that the representationswere untrue when the representations were made and when theywere acted upon; (4) the other party intended or reasonablyexpected the representations to be acted upon by the partyclaiming estoppel or by the public generally; (5) the party claimingestoppel reasonably relied upon the representations in good faithand to their detriment; and (6) the party claiming estoppel has beenprejudiced by his reliance on the representations. Vaughn v.Speaker, 126 Ill. 2d 150, 162-63 (1988).

Plaintiff clearly has not pleaded the elements of equitableestoppel. She does not allege that any defendant misrepresented orconcealed any material fact. She alleges only that defendants askedplaintiff to forgive them and to refrain from suing them. In fact, atoral argument plaintiff admitted that she could not demonstrate amisrepresentation or concealment. Without the misrepresentationor concealment of a material fact, equitable estoppel does notapply. McInerney v. Charter Golf, Inc., 176 Ill. 2d 482, 492(1997); City of Jacksonville v. Padgett, 413 Ill. 189, 199 (1952).Accordingly, plaintiff has failed to sufficiently allege the elementsof equitable estoppel.

Plaintiff's argument that a fiduciary duty between her andKownacki allows equitable estoppel to apply was not presented tothe trial court by plaintiff. Questions not raised in the trial courtcannot be argued for the first time on appeal. Ragan v. ColumbiaMutual Insurance Co., 183 Ill. 2d 342, 355 (1998). Therefore, thisissue is waived.

Plaintiff has failed to demonstrate that the principles ofequitable estoppel prohibit defendants from raising the statute oflimitations as a defense.

Conclusion

Plaintiff has neither demonstrated that a legal disability tolledthe limitations period nor shown that equitable estoppel preventsdefendants from raising the statute of limitations as a defense. Asa result, plaintiff's claims based on her allegations of sexual abuseare time-barred, and we reverse the appellate court as to thoseclaims.

Claim Based on Diocese's 1995 Contact

Failure to State a Claim

In part of count XI, plaintiff claims that the Diocesenegligently inflicted emotional distress when it contacted her in1995. According to the complaint, plaintiff learned that theDiocese was attempting to contact her through Menson in late1994, and plaintiff contacted Menson in 1995. She alleges that theDiocese failed to properly consider the effect such a contact wouldhave on plaintiff. She claims that this contact caused her severeemotional distress and physical injuries.

For a direct victim to state a claim of negligent infliction ofemotional distress, she must allege: (1) that defendant owedplaintiff a duty; (2) that defendant breached that duty; and (3) thatplaintiff's injury was proximately caused by that breach. Corganv. Muehling, 143 Ill. 2d 296, 306 (1991). If plaintiff has notalleged facts sufficient to impose a duty on defendant, plaintiff hasfailed to state a claim, and the action should be dismissed. Cunisv. Brennan, 56 Ill. 2d 372, 374 (1974).

The duty that plaintiff alleges in this case is novel. Accordingto plaintiff, the Diocese owed a duty to assess the emotional andpsychological impact of an investigatory contact before makingthat contact. We are unaware of any such duty under Illinois law,and plaintiff fails to cite any authority in support of her allegation.Accordingly, we hold that the portion of plaintiff's count XI thatalleges that the Diocese negligent inflicted emotional distress onplaintiff through the 1995 contact fails to allege a legallycognizable duty and therefore fails to state a claim upon whichrelief can be granted.

Conclusion

Plaintiff's claim of negligent infliction of emotional distressbased on the 1995 contact with the Diocese fails to state a claimupon which relief can be granted. Although the Diocese arguedthat the claim was time-barred and that adjudication of that claimwould be constitutionally impermissible, we do not reach thosearguments because we have already disposed of count XI.

CONCLUSION

We reverse the decision of the appellate court and affirm thedecision of the trial court in which the trial court dismissedplaintiff's complaint in its entirety.

Appellate court judgment reversed;

circuit court judgment affirmed.

JUSTICE FREEMAN, specially concurring:

I agree with the result in this case. I write separately becauseI do not endorse the reasoning by which the majority arrives at itsconclusion. The majority determines that the victim's claims forchildhood sexual abuse are time-barred based solely on Clay v.Kuhl, 189 Ill. 2d 603 (2000). I continue to adhere to my belief thatClay was wrongly decided. See Clay, 189 Ill. 2d at 615-22(Freeman, J., dissenting, joined by Harrison, C.J.). Nevertheless,the facts in this case differ so dramatically from the facts in Clay,that I concur that dismissal is appropriate here.

As the majority correctly holds, it is impossible to concludethat the victim in this case was, as she contends, unaware of anyinjury until early 1995. The victim specifically alleges in hercomplaint that she was "filled with shame and guilt and horror" atthe thought of moving in with her abuser in 1971. Her abuser atvarious times held a knife to her throat, threatened her with a gun,beat her with his hands and a metal chair and engaged in sexualactivities with her by force. Moreover, after becoming pregnantplaintiff aborted the fetus as a result of physical assault by herabuser and, when taken to a hospital, was informed that she hadvery nearly died. These facts differ markedly from those alleged inthe plaintiff's complaint in Clay. Cf. Clay, 189 Ill. 2d at 608-09(victim alleged that the sexual contact with her abuser was notforcible and that she was never physically harmed). Accordingly,the rule illegitimately applied in Clay correctly operates to barplaintiff's complaint in this case. See Clay, 189 Ill. 2d at 611-13("discovery rule" delays commencement of limitations period onlyuntil the plaintiff becomes aware of some injury, not until theplaintiff realizes the full extent of her injuries), citing Golla v.General Motors Corp.,167 Ill. 2d 353 (1995).

CHIEF JUSTICE HARRISON, dissenting:

I cannot concur in the majority's cursory disposition of countXI of plaintiff's complaint. While the duty asserted by plaintiff inthat count may be novel, the mere absence of precedent does notrender it untenable. If the only cognizable legal principles were theones already acknowledged by the courts in this state, we couldnot have abrogated sovereign immunity as to school districts (seeMolitor v. Kaneland Community Unit District No. 302, 18 Ill. 2d11 (1959)) or abolished contributory negligence (see Alvis v.Ribar, 85 Ill. 2d 1 (1981)). Indeed, our common law would neverhave been able to advance beyond the doctrines in effect under theEnglish monarchs. Amann v. Faidy, 415 Ill. 422, 433 (1953).

The outstanding characteristic of our system of judicialdecisionmaking is its adaptability and capacity for growth. Ours" 'is a system of elementary rules and of general judicialdeclarations of principles, which are continually expanding withthe progress of society, adapting themselves to the gradual changesof trade, commerce, arts, inventions and the exigencies and usagesof the country.' " Amann v. Faidy, 415 Ill. at 433-34, quotingKreitz v. Behrensmeyer, 149 Ill. 496, 502 (1894). Accordingly,where new situations arise which we have not considered, weshould not hesitate to consider whether the common law should beextended or modified to cover them.

Finding no precedent for the situation alleged in count XI, thecourt should have undertaken its own analysis as to whether theDiocese owed plaintiff a duty. There is nothing sacrosanct aboutthe legal concept of duty. Duty is no more than an expression ofthe sum total of those considerations of policy which lead the lawto say that the particular plaintiff is entitled to protection. Lee v.Chicago Transit Authority, 152 Ill. 2d 432, 453 (1992).

Whether a duty exists is a question of law and depends onwhether the defendant and plaintiff stood in such a relationship toone another that the law imposed upon the defendant an obligationof reasonable conduct for the benefit of plaintiff. Ward v. K martCorp., 136 Ill. 2d 132, 140 (1990). The factors relevant to thecourts' imposition of a duty include the likelihood of injury, thereasonable foreseeability of such injury, the magnitude of guardingagainst the injury, and the consequences of placing that burden onthe defendant. Jackson v. TLC Associates, Inc., 185 Ill. 2d 418,425 (1998).

In this case, I think it quite likely and foreseeable that theDiocese's contact with Mrs. Parks in 1995 would result in injuryto her. Any form of sexual abuse is potentially debilitating. Thetype suffered by Mrs. Parks was especially horrific. The Dioceseshould have realized that the social worker's investigation of thematter would cause Mrs. Park's memories to resurface andrekindle her fears of retaliation, triggering the type of severeemotional distress, sleeplessness and nightmares she ultimatelyexperienced. The burden to the Diocese of assessing the effects ofthe investigation on Mrs. Parks prior to making contact would nothave been significant, and there would have been no significantadverse consequences if the Diocese had been required to makesuch an assessment. I would therefore affirm the appellate court'sjudgment reversing the circuit court's dismissal of count XI.

In my view, we should also affirm that part of the appellatecourt's judgment reversing the circuit court's dismissal of countsI through X. Although the claims asserted in those counts werefiled beyond the applicable limitations and repose periods, therecord before us shows that Mrs. Parks was under duress. FatherKownacki threatened her and her family, boasted of his ties toorganized crime and claimed he was untouchable, a claimbuttressed by the church's failure to take action against him.

Where a defendant uses duress to prevent the plaintiff fromfiling suit or otherwise enforcing her legal rights, as Kownacki isalleged to have done here, the duress tolls the running of thelimitations period. 54 C.J.S. Limitations of Actions