A former Boy Scout, whose Scoutmaster sexually abused him between 1983 and 1986, can pursue his lawsuit against the Boy Scouts of America despite not filing his original complaint until 2013.
A three-justice panel of the Illinois First District Appellate Court issued its opinion Sept. 30 on a certified question from Cook Country Circuit Court Judge Moira S. Johnson, who had denied the BSA’s motion for summary judgment on the complaint that lists 18 anonymous plaintiffs. The appellate justices were considering only the claims of John Doe 2.
At issue is the conduct of Thomas Hacker, now 75, who in 1989 was convicted of five counts of aggravated criminal sexual assault against three Scouts, and was sentenced to two concurrent 50-year terms. The complaint accuses BSA and its Chicago Area Council of knowing of Hacker’s history of sexual abuse but still allowing him to serve as a Scoutmaster during Doe 2’s time in the troop. The abuse “at official Boy Scout events and outings” is not at issue in the complaint, only the allegations of “negligence, fraudulent concealment of claims, and equitable estoppel.”
The trial court asked the appellate justices to determine if statute of limitations on the fraudulent-concealment claim allow Doe 2 “to maintain an otherwise time-barred action for child sexual abuse when he testifies that he knew, before the action was time-barred, that he had sustained a physical injury from the abuser’s conduct and that the abuser had been arrested and tried for similar crimes?”
In its Sept. 12, 2014, motion for summary judgment, BSA said that although Doe 2 knew of the abuse by age 14, the statute of limitations was tolled until he turned 18, then expired when he turned 20 — almost two decades before his claim. In the third amended complaint, filed May 28, 2015, Doe 2 alleged “BSA knew that Hacker was a serial pedophile by 1970, when he was first banned from scouting.”
Doe 2 argued BSA fraudulently concealed knowledge of Hacker’s past until late 2012, meaning his complaint was timely. Further, he said the BSA and Chicago Council “were in a special relationship with him while he was a Boy Scout and had thus been obligated to inform him of ‘his cause of action.’ ”
The BSA relied on the 2011 Third District Appellate Court opinion on Wisniewski v. Diocese of Belleville, which found “the effect of a plaintiff’s knowledge about his abuse on the application of the fraudulent concealment statute was a question of fact.” However, the justices rejected that case’s relevance because of Doe 2’s allegation he was not fully aware of the potential for claims because of the fraudulent concealment he alleged.
Justice Jesse Reyes concurred with Justice Robert E. Gordon, who wrote the opinion and surmised “a factual issue remains as to whether or not (BSA)’s alleged concealment prevented plaintiff from discovering his cause of action against them until late 2012 and, depending on the answer to this question, the fraudulent concealment statute may permit his action.”
Justice Bertina E. Lampkin dissented, stating the certified question did not present a question of law, rather factual considerations the circuit court jury should have decided.
The attorneys for the Doe plaintiffs in the case hailed the ruling, saying in a prepared statement that the “decision will allow the victims to have their day in court and get the justice they deserve.”
“The BSA tried to hide behind an unfair and harshly restrictive reading of the statute of limitations to prevent a Cook County jury from ever determining the culpability of the Boy Scouts of America for childhood sexual abuse perpetrated by its Scoutmaster Thomas Hacker,” Mark McKenna, of Chicago-based law firm of Hurley McKenna & Mertz, said in the statement.
The Boy Scouts have been represented by the firm of Pretzel & Stouffer, of Chicago, according to Cook County court records.