ZINTER, Justice.
[¶ 1.] The plaintiffs and appellants are former students who attended a boarding school. They alleged that they were sexually abused while attending the school more than thirty-five years ago. The students commenced suits against some alleged perpetrators and entity defendants Blue Cloud Abbey, the Sisters of the Blessed Sacrament, the Oblate Sisters of the Blessed Sacrament, and the Catholic Diocese of Sioux Falls. The entity defendants were alleged to have owned, operated, or controlled the school when the abuse allegedly occurred. After a prior appeal to this Court,
[¶ 2.] All plaintiffs in these consolidated appeals claim to be victims of childhood sexual abuse committed prior to 1975 when they were students at St. Paul's School, which is located in Marty, South Dakota. Between 2004 and 2008, the students commenced suits against some alleged perpetrators and some entity defendants.
[¶ 3.] SDCL 15-2-14 provides that except when a different limitation is prescribed by statute, actions for personal injury "can be commenced only within three years after the cause of action shall have accrued." At the time the students commenced these actions, SDCL 26-10-25 extended the time to commence certain actions involving childhood sexual abuse. The extension gave victims time to discover the causal relationship between the sexual abuse and the resulting injury. SDCL 26-10-25 (1991) provided:
[¶ 4.] The students argue that they are entitled to the extension in SDCL 26-10-25. See One Star v. Sisters of St. Francis, 2008 S.D. 55, ¶ 13, 752 N.W.2d 668, 675. The entity defendants respond that SDCL 26-10-25 does not apply to non-perpetrating defendants who are sued on theories of negligence or other causes of action not based on intentional, criminal conduct. The entity defendants point out that the statute applies to actions that are "based on intentional conduct" involving "childhood sexual abuse." They also point out that childhood sexual abuse is specifically defined as sexual abuse that is proscribed by the criminal code. See SDCL 26-10-29. The entity defendants contend that the circuit court erred in allowing the students to utilize SDCL 26-10-25 because the entity defendants were not alleged to have engaged in "intentional acts" of "childhood sexual abuse" that was proscribed by the criminal code.
[¶ 5.] The construction and application of statutes of limitation present legal questions that we review de novo. Jensen v. Kasik, 2008 S.D. 113, ¶ 4, 758 N.W.2d 87, 88. In reviewing summary judgment, "affirmance is suitable if any legal basis exists to support the court's
[¶ 6.] SDCL 26-10-25 applies to "[a]ny civil action based on intentional conduct brought by any person for recovery of damages for injury suffered as a result of childhood sexual abuse." (Emphasis added.) For purposes of this statute, childhood sexual abuse is defined in SDCL 26-10-29 as any act committed "by the defendant against the complainant ... [and] which act would have constituted a felony." (Emphasis added.) The question is whether, in light of these emphasized limitations, SDCL 26-10-25 applies to claims against non-perpetrating defendants who are sued for negligence or on other theories of liability not involving intentional, criminal conduct. Courts that have considered this question have reached different conclusions.
[¶ 7.] We are persuaded by the courts that have relied on the plain and ordinary meaning of identical or similar language limiting application of such statutes to claims based on intentional conduct constituting a criminal offense. For example, the Colorado Court of Appeals considered the "plain language of the text" that limited the Colorado statute to actions "based on ... a sexual offense against a child." Sandoval v. Archdiocese of Denver, 8 P.3d 598, 600-01 (Colo.App.2000). The court concluded that this limiting language, "when viewed within the context of the entire statute," restricted application of the statute to claims brought against perpetrators and did not include related claims brought against third parties. Id. at 602.
[¶ 8.] The Colorado court acknowledged the view of other courts that the language "based on" can be read to allow a victim's claims if the claims simply arise from "the factual circumstances of the sexual offense." Id. at 601. The court specifically acknowledged Werre v. David, 275 Mont. 376, 913 P.2d 625 (1996) and C.J.C. v. Corp. of Catholic Bishop, 138 Wn.2d 699, 985 P.2d 262 (1999) (both applying the "based on" intentional conduct language to negligence claims against non-perpetrators because the perpetrator's sexual act was the starting point or foundation for injury that would not have occurred absent the abuse). Sandoval, 8 P.3d at 601. The Colorado court also acknowledged Almonte v. New York Medical College, 851 F.Supp. 34 (D.Conn.1994) (applying an extended statute of limitations to claims against non-perpetrators on the theory that public policy required the extension). Sandoval, 8 P.3d at 601. But the Colorado court concluded that when the limiting language was "viewed within the context of the entire statute, ... the term `based on' encompasses only those civil claims brought against the perpetrator arising from his or her sexual assault or offense." Id. at 602. The court found it "highly significant" that the statute was tied to sexual offenses as defined in the criminal code, and criminal proscriptions do "not include negligently allowing an offense to happen or placing a perpetrator in a position to commit a sexual offense against a child." Id.
[¶ 9.] Rhode Island's decision is even more persuasive because its statute is virtually identical to SDCL 26-10-25. Rhode Island enacted a statute of limitations for "[a]ll claims or causes of action based on intentional conduct brought by any person for recovery of damages for injury suffered as a result of childhood sexual abuse....." Kelly v. Marcantonio, 678 A.2d 873, 875 (R.I.1996) (emphasis added). The statute defined childhood sexual abuse as "any act committed by the defendant against a complainant." Id. at 876 (emphasis added). The Rhode Island Supreme Court stated that the first clause
[¶ 10.] Before a legislative amendment, the court in Debbie Reynolds Professional Rehearsal Studios v. Superior Court, 25 Cal.App.4th 222, 30 Cal.Rptr.2d 514 (1994), concluded that the California statute was also limited to those who engaged in criminal conduct. The California statute applied to actions "for recovery of damages suffered as a result of childhood sexual abuse." Id. at 518 n. 3 (citing Cal.Civ. Proc.Code § 340.1 (West)). The statute also referenced criminal acts by referring to "any act committed by a defendant against a plaintiff ... and which act would have been proscribed" by specified penal code sections. Id. at 519. The court concluded that these "plain terms" applied "only to those defendants who perpetrate, against minors, certain intentional criminal acts prohibited by law." Id. "[T]he Legislature, in defining what constitutes sexual abuse, referred to the criminal statutes to make clear that childhood sexual abuse is an intentional rather than a negligent act." Id.
[¶ 11.] The Eighth Circuit Court of Appeals considered a Missouri statute of limitations that applied to "[a]ny action to recover damages from injury or illness caused by childhood sexual abuse." Walker v. Barrett, 650 F.3d 1198, 1209 (8th Cir.2011). Notwithstanding this broad language, the court rejected the argument that the statute applied to all actions arising from childhood sexual abuse. Id. The court pointed out that another provision provided that childhood sexual abuse was "any act committed by the defendant against the plaintiff which act ... would have been a violation of [identified criminal proscriptions]." Id. The court noted that non-perpetrating defendants could not cause injury or illness from childhood sex abuse because non-perpetrating defendants would not have committed one of the enumerated criminal acts. Id.
[¶ 12.] We find these decisions persuasive because the South Dakota Legislature adopted the same or similar limitations. First, the plaintiff's civil "action" must be based on "intentional conduct." SDCL 26-10-25. Second, the childhood sexual abuse must have been committed by "the defendant" in the civil action, and the abuse must be an act that would "have constituted a felony." SDCL 26-10-29. We have previously recognized that the language of SDCL 26-10-25 applies to intentional, criminal acts. "[T]he Legislature intended SDCL 26-10-25 to apply to all acts of intentional childhood sexual abuse conduct. This is so because SDCL 26-10-29 defines childhood sexual abuse as
[¶ 13.] The students' reliance on Almonte, Werre, and C.J.C. is misplaced. Almonte was based on the belief that the Connecticut statute was more concerned with a particular type of harm than with the party that caused the harm. 851 F.Supp. at 37. Therefore, the court utilized "public policy" to extend the reach of the statute to non-perpetrators who had not engaged in intentional conduct. Id.
[¶ 14.] The students point out that in Werre, the Montana Supreme Court allowed an action against a non-perpetrator under language that is similar to South Dakota's. See Werre, 913 P.2d at 630 (construing a statute of limitations that applied to actions "based on intentional conduct brought by a person for recovery of damages for injury suffered as a result of childhood sexual abuse"). The Montana court construed the language "based upon intentional conduct" to permit actions based on negligence. Id. at 632. It did so because, in its view, "an action is `based on intentional conduct' if intentional sexual abuse is the starting point or foundation for the claim." Id. But the Montana court's factual "starting point or foundation" analysis overlooks the fact that statutes of limitation are based upon the "cause of action" asserted rather than the factual starting point or foundation that may lead to various causes of action. See SDCL 15-2-1 (providing that all civil actions must be commenced within the periods of limitation specified in Title 15 after the "cause of action" has "accrued," rather than the period after the factual starting point that gives rise to the cause of action).
[¶ 15.] The appropriate analysis looks to the "nature of the cause of action or the right sued upon." Morgan v. Baldwin, 450 N.W.2d 783, 785 (S.D.1990). In this case, the nature of the students' causes of action against the perpetrators is based upon intentional conduct. Further, the right sued upon is the right to be free from a perpetrator's criminal sexual abuse. But the nature of the students' causes of action against the entity defendants is based upon negligence, breach of fiduciary
[¶ 16.] The students' reliance on the Washington court's analysis in C.J.C. is also misplaced. Although that statute is closely aligned with South Dakota's statute, the Washington Supreme Court applied the same factual starting point analysis utilized in Werre. C.J.C., 985 P.2d at 267 (concluding that "an action is `based on intentional conduct' if intentional sexual abuse is the starting point or foundation of the claim"). For the reasons expressed in our analysis of Werre, we decline to follow C.J.C.'s factual starting point analysis. We also decline to follow C.J.C. because its conclusion was based in part on another statutory provision that "expressly include[d] within its scope suits against negligent entities." C.J.C., 985 P.2d at 268.
[¶ 17.] "Words and phrases in a statute must be given their plain meaning and effect." Pete Lien & Sons, Inc. v. City of Pierre, 1998 S.D. 38, ¶ 9, 577 N.W.2d 330, 331. In this case, the plain language of SDCL 26-10-25 and 26-10-29 requires that the students' causes of action be based on "intentional conduct" and that "the defendant" in the civil action has engaged in child sexual abuse proscribed by South Dakota's criminal code. Because the students' causes of action only assert liability for negligence, breach of fiduciary duty, and vicarious liability, SDCL 26-10-25 does not apply.
[¶ 19.] In this case, the students' causes of action expired under SDCL 15-2-14(3) and SDCL 15-2-22 more than twenty years before the students commenced their suits. There is no dispute that all of the students were born between 1941 and 1962, and none of the students made any claim for abuse occurring after 1975. Although SDCL 15-2-22 tolled the three-year period until one year after each of the students turned eighteen, the youngest student turned nineteen in 1981 and all suits were commenced in and after 2004. Therefore, none of the students commenced his or her cause of action until more than twenty years after the time for filing suit had expired. Because the students' causes of action were barred by the applicable statutes of limitation,
[¶ 20.] GILBERTSON, Chief Justice, and KONENKAMP, SEVERSON, and WILBUR, Justices, concur.