MEIERHENRY, Retired Justice.
[¶ 1.] The circuit court determined that the plaintiff's action for childhood sexual abuse was barred by the three year statute of limitations. We affirm.
[¶ 2.] The alleged sexual abuse against the plaintiff, Roger Rodriguez,
[¶ 3.] The South Dakota Legislature permits a person who was sexually abused as a child to sue within three years of the abuse or three years from the time the person "discovered or reasonably
[¶ 4.] In response, Rodriguez submitted an affidavit to clarify his deposition testimony. His affidavit indicated that he only became aware of the effects of the childhood sexual abuse after a psychologist, Dr. Frank Dame, explained them to him in 2005. Rodriguez recognized that he always had painful memories of the abuse and that he became "angry when [he] thought about being abused, . . . and lashed out, or drank or used drugs." He clarified, however, that when the defendants' lawyer asked him "if [he] knew at the time `that this abuse was causing [Rodriguez] these problems,' it was those behaviors [(lashing out, drinking, and drug use)] [he] was referring to." Rodriguez claimed that he considered his behaviors normal and "an everyday part of life in Lower Brule [Indian Reservation]." He further claimed that he did not understand the link between the behaviors and the sexual abuse.
[¶ 5.] Dr. Dame's opinion, presented by affidavit, was that Rodriguez "was unable to and did not associate his anger, depression, resistance to authority, sexual dysfunction, drug and alcohol abuse, and violent behavior patterns with [the childhood sexual abuse]." Dr. Dame indicated that Rodriguez recognized that he got angry and used drugs and alcohol as coping mechanisms when he thought about the childhood sexual abuse but that Rodriguez "did not connect the injuries and conditions he suffered from with the [sexual abuse]" until the summer of 2005.
[¶ 6.] Because this issue comes to us from an order granting summary judgment, we direct our review to "whether genuine issues of material fact exist and whether the law was correctly applied." Zephier v. Catholic Diocese of Sioux Falls, 2008 S.D. 56, ¶ 6, 752 N.W.2d 658, 662 (quoting Bordeaux v. Shannon Cnty. Sch., 2005 S.D. 117, ¶ 11, 707 N.W.2d 123, 126). We view the evidence in the light most favorable to the non-moving party, Rodriguez. Id. (citing Wulf v. Senst, 2003 S.D. 105, ¶ 17, 669 N.W.2d 135, 141). "Entry of summary judgment is mandated against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on
[¶ 7.] The statute of limitations in "SDCL 26-10-25 is an affirmative defense, and the burden of proof to establish affirmative defenses is on the party who seeks to rely on it." Id. ¶ 9 (citing Clancy v. Callan, 90 S.D. 115, 118, 238 N.W.2d 295, 297 (1976) (citing Lang v. Burns, 77 S.D. 626, 97 N.W.2d 863, 865 (1959))). "In summary judgment proceedings, where the defendant asserts the statute of limitations as a bar to the action, and presumptively establishes the defense by showing the case was instituted beyond the statutory period, the burden [of production] then shifts to the plaintiff to establish the existence of material facts in avoidance of the statute of limitations[.]" Id. (quoting Conway v. Conway, 487 N.W.2d 21, 23 (S.D. 1992)). "Generally, a statute of limitations question is left for the jury; however, `[d]eciding what constitutes accrual of a cause of action' is a question of law and reviewed de novo." One Star v. St. Francis Mission, 2008 S.D. 55, ¶ 12, 752 N.W.2d 668, 675 (quoting Peterson v. Hohm, 2000 S.D. 27, ¶¶ 7-8, 607 N.W.2d 8, 10-11 (citations omitted)).
[¶ 8.] It is undisputed that Rodriguez knew of the alleged abuse more than three years before he filed suit. It is also undisputed that he got angry and depressed, exhibited aggressive behavior, and used drugs and alcohol when he thought about the abuse. Dr. Dame labeled Rodriguez's reactions as coping mechanisms and concluded that Rodriguez had not connected the sexual abuse with his reactions, i.e. injuries, until 2005 during counseling.
[¶ 9.] Dr. Dame's affidavit may support Rodriguez's claim that he did not have actual notice more than three years before filing his action. But Dr. Dame's affidavit leaves open whether Rodriguez had inquiry notice. An action "accrues and the plaintiff is put on inquiry notice when facts come to light that would prompt a reasonably prudent person to seek out information regarding his or her injury or condition and its cause." One Star, 2008 S.D. 55, ¶ 18, 752 N.W.2d at 677. This Court explained inquiry notice in Zephier as follows:
2008 S.D. 56, ¶ 14, 752 N.W.2d at 665 (citations and quotations omitted). Rodriguez commenced his action in November 2007. Even assuming that Rodriguez did not discover the connection between the
[¶ 10.] The facts material to inquiry notice are not in dispute. Rodriguez admitted in his deposition that, over the years, memories of the sexual abuse made him angry and caused other negative reactions. He answered as follows:
Rodriguez also admitted that he disclosed to a prison official that he was sexually abused sometime before 2000. He explained:
He later qualified his answer by affidavit as follows:
Rodriguez further acknowledged that he corresponded with Donadio around 1994 and asked "why he had done this to us." Around that time, Rodriguez contacted Donadio's ex-wife to warn her about Donadio's abuse since Donadio had "two little boys at the time."
[¶ 11.] Inquiry notice is determined by an objective standard. Rodriguez and Dr. Dame focus on what Rodriguez knew subjectively. Even though Rodriguez was subjectively unable to connect the full extent of his injuries or condition to the sexual abuse, he was aware of enough facts to put him on inquiry notice. He knew he had been abused as a child. He knew when he thought about the abuse he got angry, he lashed out, and he used drugs and alcohol. He knew the memory of the abuse affected his behavior. He knew the memories were painful. He acknowledged to the prison counselor that he "should start trying to deal with it." These facts were sufficient to "prompt a reasonably prudent person to seek out information regarding his injury or condition and its cause." Zephier, 2008 S.D. 56, ¶ 18, 752 N.W.2d at 665. Because Rodriguez had inquiry notice more than three years before he filed suit, we affirm.
[¶ 12.] GILBERTSON, Chief Justice, and ZINTER and SEVERSON, Justices, and HOFFMAN, Circuit Court Judge, concur.
[¶ 13.] HOFFMAN, Circuit Court Judge, sitting for KONENKAMP, Justice, disqualified.
The 2010 Legislature added the following language: "However, no person who has reached the age of forty years may recover damages from any person or entity other than the person who perpetrated the actual act of sexual abuse."