Suing Over Sexual Abuse at a Daycare

My question involves injury or loss that occurred in the state of: Virginia.
In 1990, my daughter was 4 years old. I placed her in a home daycare that was licensed by the county and the state of VA. I toured the woman's home and inquired about who lived there and was told it was her, her two small children, and her husband.
2 weeks later, my daughter came home and told me what happened. She was able to describe the incident in such detail that it allowed much good evidence to be collected later that night when the man was arrested.
The perpetrator was the 27 year old nephew of the daycare provider who she later admitted to police was living in the home. On the day of the incident, she left my daughter alone with the man while she took her own children and went shopping.
State of VA requires as part of licensing that all people in the home are reported and background checks conducted. This is for the safety of the children. The provider did not report him as living there, nor did she disclose the information to me.
The man was charged with sexual assault of a minor child but they were going to drop the charge down to lewd and lacivious behavior because they only had DNA evidence on her clothing and a towel. A rape kit was done and thankfully my daughter was not raped and no evidence was found on her body. She was too young to testify at that time, hence the lesser charges.
However, he posted bond the night before the preliminary hearing and went back to his country (India). This was also reported by his family. He was entered into the NCIS database as a fugitive and we were told that if he tried to come back he would be apprehended and since my daughter would be older, she should be prepared to testify. The provider lost her license for a year for her violation of the disclosure rule.
We consulted a lawyer to inquire about suing the provider but he suggested we wait until they had some assets as the husband was a student then and they didn't have much.
We always left the door open for my daughter to talk about the incident but the years went by and she appeared to have forgotten. So we all forgot, more or less.
My daughter is now 20 and has recently become depressed due to problems in a relationship with her boyfriend. She is unable to get physically close to him without having a violent reaction and she has started to remember the incident and trauma after the incident.
We spoke about it at length and she would like to bring a lawsuit now. The provider is still running a daycare but they have acquired considerable assets now and she has several employees.
I believe that we can argue against the statute of limitations (2 years from age of majority in VA) running by virtue of the fact that the memory just returned and the trauma is now causing problems for her.
The question is how can we find an attorney that knows how to fight a case like this, or is that even necessary. How often do these cases happen and how often are they won? I assume the DNA and other evidence is still locked up somewhere and will be made available if needed?

The problem as I see it is that you AND the child AND the authorities WERE aware of the situation 16 years ago.

In such instances you really can't expect to toll the SOL; action could have been taken then and there. Lack of assets then should not have prevented a judgment from being attempted; it likely would have remained collectable for several years afterwards (assuming it would have been awarded).

That may be true, but why should my daughter be prevented from suing on her own behalf, because I got bad legal advice? I don't see anything in the code about tolling only if no-one knew about the abuse. Doesn't make much sense from a legal standpoint--doesn't it sort of defeat the purpose of tolling from age of majority for those who couldn't take action before?

The point being, you could have taken action before. You were your daughter's "agent", in a sense.

Your daughter hasn't recently discovered that she was abused - she was aware of it much earlier. Legal action was taken at the time. The fact that nobody talked about it and it sort of went away doesn't really change anything.

However, I do encourage your daughter to have a chat with a local attorney.

Forgive me. I am not trying to be dense--but I'm still not understanding your point. The purpose of tolling the SOL is to give the actual victim the chance to seek justice on her own, is it not? It doesn't follow that the opportunity would be removed because I was her agent and could have acted on her behalf. I did act as her agent--and I did not have the money to retain an attorney and they would not take the case on contingency when there were no assets. Again, there is nothing in any law I have read that even remotely suggests this. I am just curious as to what your sources are for this, or is it just a personal opinion?
As for your 2nd point, VA law states that tolling can go up until 2 years from the time that a causal relationship between the abuse and a current psychological condition is established. Even better though, I just went to check this again to make sure it was accurate, and discovered an article that said Virginia had extended the SOL to 20 years from age of majority. Wow!! That sure makes things easier.
Now it becomes a question of the third party thing...Can provider be considered negligent if she didn't know her nephew was an abuser? And how difficult will it be to get the evidence transferred from the criminal system?
http://www.wydaily.com/local-news/62...vil-suits.html

The tolling of the statute would apply if she wanted to sue the actual perp - but if she's talking about suing a third party, that's a totally different scenario (who would be sued under third party liability umbrella, NOT as a direct perpetrator).

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State of VA requires as part of licensing that all people in the home are reported and background checks conducted. This is for the safety of the children. The provider did not report him as living there, nor did she disclose the information to me.

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Note that the law didn't require information to be disclosed to YOU. It's also relevent that the requirements for providers that applies to this case are the laws for providers that were in place THEN, not the laws for background checks that are in place NOW (and are much more stringent). To successfully bring a case against the provider, the burden is to PROVE that the provider knew or should have reasonably have known, of the increased risk - either through anything that might have been revealed through a background check, or from personal knowledge. If the guy had no history that would have been discovered, then any failure to complete a background check would be little more than an administrative violation, NOT a "causal" element in the perpetration of the crime. In other words, if there's ANY case to be made at this point, it's going to be against the perp himself.

Doggie is absolutely correct that the tolling issue doesn't apply - because there is overwhelming evidence of knowledge of the incident in the form of a report to the police made at the time. This is far from a case of delayed discovery. Extending of SOL's doesn't in any way make a case "easier", it only allows that such a case CAN be pursued...but in fact, it makes it much HARDER in that the passage of time makes witness and victim testimoney much less reliable, physical evidence degrades or is destroyed, and a whole host of other issues. It's not anywhere near as functional of a "win" for victims as it is for politicians.

She can absolutely seek a consultation with a personal injury attorney who specializes in these cases (referrals can be obtained from the state bar association), but as the criminal case was only ever going to be charged as a misdemeanor (and NOT a felony), it's incredibly unlikely that any evidence beyond a digital copy of the police report is in existance.

aardvarc,

Do you think a problem lies within the 20 year old daughter already being out of the SOL, when a new law that is written and takes effect on July 1, 2011?

I could see if the daughter was 18, well within the SOL and wanted to wait till she was 30 because of the new law.

But now that the SOL has run and a new law written after the fact doesn't make any legal grounds for a civil suit.

Even without the new law, there were provisions under the old law that could have applied and significantly tolled the SOL anyway....the major difference is that the old law required reasonable delayed discovery issues, whereas the new law doesn't (oversimplified, but that's the gist). The issue relevent to this poster is that when attempting to apply the statute applicable at the time the victim turned 18 (which is the statute that would control how long the clock was allowed to tick), there's no reasonable arguement for delayed discovery in this case.

There's also the bigger issue - the poster is talking about wanting to sue a third party, rather than the direct perpetrator - and the SOL special conditions for tolling aren't outlined in the statute for third party cases, so the default SOL for third party liability applies, and it's WAYYYYYY too late. The victim either goes after the perp or no one.

There is no way possible to sue a third party.

Perhaps your daughter can sue, but I would expect it to be promptly dismissed due to the SOL. See what a local attorney thinks.

You of course have no standing to do anything. It is up to your daughter. I certainly would not think she is going to have much credibility at this late date. Sounds like just looking for a payday.

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Quoting Dogmatique

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Lack of assets then should not have prevented a judgment from being attempted

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Lack of assets and the type of long shot case it was prevented any atty from taking the case on a contingency basis. As we were a young family just starting out, the 2500.00 retainer fee was prohibitive, so of course lack of assets prevented a judgement from being sought. And, incidentally, I now have a fairly well-known P.I. attorney who has taken the case on contigency and is fairly confident that an award for damages is forthcoming. In my state now, multiple precedents have been established and apparently it's not such a long shot anymore.

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Quoting Who'sThatGuy

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But now that the SOL has run and a new law written after the fact doesn't make any legal grounds for a civil suit.

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A statute of limitations is generally going to be treated as a procedural law, not substantive law. You don't have a "right" to have a cause of action against you expire within a shorter statutory period and, should the legislature amend a statute of limitations, it may well be possible for a plaintiff to bring an action that had previously expired. There are potential challenges that may be raised to the application of a longer statutory period - for example, whether the statute was intended to be applied retroactively and whether the amendment is consistent with principles of due process - but there's no guarantee that they'll work.

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Quoting Courtnado

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The purpose of tolling the SOL is to give the actual victim the chance to seek justice on her own, is it not?

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Although that is usually the effect, it's not required. In most states, for example, the tolling period for minors injured by medical malpractice is quite short and in most cases will run well before the minor reaches adulthood, and possibly before the magnitude of an injury is even manifest. Although in most cases tolling based on minority will allow a minor to bring a lawsuit after the age of majority, in some cases involving very serious injury a child will forever lose her cause of action based upon the inaction of a parent.

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Quoting Courtnado

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Even better though, I just went to check this again to make sure it was accurate, and discovered an article that said Virginia had extended the SOL to 20 years from age of majority. Wow!! That sure makes things easier.

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It sure does.

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Quoting Courtnado

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Can provider be considered negligent if she didn't know her nephew was an abuser?

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Possibly. The provider has a duty to keep children safe, and it can be argued that she was negligent in allowing anybody - including her nephew - to access the children without performing a proper background check. Showing that negligence in performing those duties was a causative factor becomes more complicated if the background check would have come back clear.

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Quoting Courtnado

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And how difficult will it be to get the evidence transferred from the criminal system?

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It's more an issue of access and preservation, I expect. If the police are holding and preserving the evidence just in case the offender comes back from India, they may be concerned about the effect on chain of custody and claims of spoliation if they release evidence for use in a civil trial. But statements, photographs, lab reports, etc., should be easily available, and it sounds like there's pretty good documentation from the time, including statements from the daycare proprietors.

Some clarifications:

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Quoting aardvarc

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The tolling of the statute would apply if she wanted to sue the actual perp - but if she's talking about suing a third party, that's a totally different scenario (who would be sued under third party liability umbrella, NOT as a direct perpetrator).

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In fact, the SOL toll does apply when a suit is brought against a third party in a sex abuse on a minor case. This was one of the main features of the objection to the bill that increased the tolling time. There have been cases in VA where third party respondents invoked the SOL to have a claim dismissed and then tried to claim exemption from the toll because it didn't apply in third party negligence cases. The claims were allowed to proceed. It makes sense to me that you cannot use SOL as a defense, and throw the tolling piece out. They kind of go together don't they?

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Note that the law didn't require information to be disclosed to YOU. It's also relevent that the requirements for providers that applies to this case are the laws for providers that were in place THEN, not the laws for background checks that are in place NOW (and are much more stringent). To successfully bring a case against the provider, the burden is to PROVE that the provider knew or should have reasonably have known, of the increased risk - either through anything that might have been revealed through a background check, or from personal knowledge. If the guy had no history that would have been discovered, then any failure to complete a background check would be little more than an administrative violation, NOT a "causal" element in the perpetration of the crime. In other words, if there's ANY case to be made at this point, it's going to be against the perp himself.

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The daycare provider lost her license for one year for violating the reporting requirement. I was well-versed on the state requirements then and they have not changed in this regard. You have made an incorrect assumption here. The requirement then, and now was that any person who could come into contact with a child in the home, and who was over the age of 14, must be declared within a week and must have filed a CPS application for a background check. I do realize that there was no LEGAL requirement for the provider to notify me, however, I asked her outright if she and her husband and children were the only ones in the home and she did not simply withhold the information but actively lied about it. The reason I feel that point is relevant is to show that I did due diligence and that there was no contributory negligence on my part.

As for the provider having reasonable knowledge of a risk? My entire premise is that she did have knowledge of a risk whether she knew he was a sex offender or not. One of the key points in my complaint is that she left my daughter alone with the perp, when we had a contract that identified her as the sole caretaker of the children. She left to go to the grocery store and took her own children with her, leaving my daughter behind with him. My daughter had never even laid eyes on the man up until this point. It is reasonable to think that there was some risk in this decision as the man was not a professional childcare provider, did not have CPR (required for county and state licensing) nor state required training, and had not had a background check which the state deems a prerequisite for ensuring a child's safety. Not to mention, this man had not signed a contract promising to provide adequate care for another person's child and he was under no duty to do so. It is reasonable that if a state mandates certain procedures and artifacts be present before a child can be left alone with someone, and a person has signed a contract with the state agreeing to be compliant as a condition of license, that person acknowledges that this is a necessary prerequisite for any adult who has access to the child.
Secondly, the provider also had a contract with me that stated she would be the only provider and that in exchange for X amount of money she would do her best to meet my child's basic needs--safety being one of those needs. Leaving my child alone with this man was not doing her best whether she believed her would hurt her or not.

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...criminal case was only ever going to be charged as a misdemeanor (and NOT a felony), it's incredibly unlikely that any evidence beyond a digital copy of the police report is in existance.

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It may[/I] have been ultimately been tried as misdemeanor but on the eve of the preliminary hearing, the charge remained felony sexual battery of a minor. There was certainly enough evidence to hold him over for trial and there was significant forensic evidence, already analyzed and written up by the lab. Somehow I think that evidence will be the least of our concerns. We have a forensic lab report with perfect samples and a reference sample that was submitted within 48 hours of the arrest. The samples and DNA were analyzed before any chance of degradation and this is all noted by the lab.The commonwealth attorney commented that it was some of the best forensic work she had ever seen and that it was partly due to my daughter's memory and the fact that a vice detective had been first at the scene. We also have a police report, transcribed interviews of the daycare provider and family and she was forthcoming with information about her failure to report him and about the fact that he indeed lived in the home and that she had left my child alone with him.

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Quoting Courtnado

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This was one of the main features of the objection to the bill that increased the tolling time.

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The statute simply creates an extremely long limitations period. Perhaps a different version of the bill created objections to an increase of the tolling time, but that's not what the

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Quoting Courtnado

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There have been cases in VA where third party respondents invoked the SOL to have a claim dismissed and then tried to claim exemption from the toll because it didn't apply in third party negligence cases. The claims were allowed to proceed.

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Do you have any citations? I expect that they instead argue that the new, extremely long statute of limitations should apply only to the actual offender and not to third parties.

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Quoting Courtnado

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As for the provider having reasonable knowledge of a risk? My entire premise is that she did have knowledge of a risk whether she knew he was a sex offender or not.

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If you have no evidence of actual knowledge, you either need to find some evidence or try to establish foreseeability in some other manner. As you have no evidence of actual knowledge, there's not much left to do but argue that there was "knowledge of a risk" that made it negligent for the caregiver to leave the child with the third party. I expect that the defense is responding that even had they dotted every 'i' and crossed every 't', they would not have learned anything that would have caused them to be concerned about the perp.

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Quoting Courtnado

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One of the key points in my complaint is that she left my daughter alone with the perp, when we had a contract that identified her as the sole caretaker of the children. She left to go to the grocery store and took her own children with her, leaving my daughter behind with him.

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That sounds like a breach of contract claim, not a negligence claim.