Sailsbery v. Parks

Judge ROY

dissenting.

The majority holds that neither the statute of limitation provisions of § 13-80-103.7, C.R.S.1998, nor the tolling provisions of § 13-80-103.7(3.7), C.R.S.1998, affect the definition of accrual set forth in § 13-80-108, C.R.S.1998. I have concluded that plaintiffs complaint falls within the scope of § 13-80-103.7(3.5), C.R.S.1998, and I agree with its dismissal pursuant to § 13-80-103.7(3.7). Therefore, I respectfully dissent.

Summary judgment is a drastic remedy and should be granted only upon a clear showing that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. Churchey v. Adolph Coors Co., 759 P.2d 1336 (Colo.1988). Appellate review of an order granting summary judgment is de novo. Aspen Wilderness Workshop, Inc. v. Colorado Water Conservation Board, 901 P.2d 1251 (Colo.1995).

When reviewing a motion for summary judgment, an appellate court must give the nonmoving party the benefit of all favorable inferences that may be drawn from the facts. Holland v. Board of County Commissioners, 883 P.2d 500 (Colo.App.1994).

The plaintiff was born June 18, 1954, and turned 18 years of age in 1972. In her complaint, which was filed March 8, 1996, plaintiff alleges that defendant sexually assaulted her on numerous occasions between 1965 and 1972, or when she was between 11 and 18 years old.

In her affidavit filed in opposition to defendant’s motion to dismiss her complaint as untimely, plaintiff stated that- in August of 1994, she entered therapy for depression and substance abuse. With respect .to that therapy, the affidavit states:

[I] began the process of slowly recalling painful memories of events that were traumatic and upsetting, events that I had never previously recalled. These events involved my association with Dr. James J. Parks, Defendant in the current action. It was during my treatment in late 1994 and 1995 that I began recalling bits and pieces of the events forming the basis of this lawsuit.
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At the time of my association with Dr. Parks, I did not know what he was doing to me was wrong and harmful. No one ever told me that his actions were improper until I was in therapy.
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Not until the end of 1994, through 1995 and well into 1996 was I aware that I had been traumatized by Dr. Parks, that this trauma had caused me long-term psychological injury and that the cause of my injury was the Defendant, Dr. Parks and *141his wrongful actions towards me as a minor child.

Plaintiff also submitted two letters written by her treating psychiatrist in opposition to defendant’s motion for summary judgment. In that correspondence, the psychiatrist states, in part:

I have been the treating psychiatrist for Ms. Sailsbery since August of 1994. Initially, Ms. Sailsbery sought help for symptoms of depression. However, after a couple of months in treatment, it became clear that she suffered from serious psychological sequelae resulting from a long-term and unfortunately bizarre relationship with a neighboring physician.
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She has post-traumatic stress disorder and has had a physiological addiction to narcotics, which led to other substance addiction. Some of this behavior seems to be an inappropriate attempt to block out the painful memories of the abuses received from Dr. Parks_ On many occasions, Ms. Sailsbery questioned her memory about some of the events involving Dr. Parks.... This was primarily her defense acting to keep her from facing a painful truth, that a person posing as a helper was actually abusive to her in a number of ways.
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It is my opinion that Marty’s recollection of events with Dr. Parks was repressed until she was well into therapy. I believe one of the purposes of her extensive substance abuse was to facilitate forgetting memories of abuse. She clearly had Dr. Parks idealized and employed ego-defense mechanisms, i.e. repression, to maintain that.

Section 13-80-103.7(1), C.R.S.1998, provides that a civil action resulting from a sexual assault or offense against a child shall be filed within six years after removal of a disability as defined by statute or within six years after a cause of action accrues, whichever later occurs. Section 13-80-108, C.R.S. 1998, provides that an action for personal injury accrues on the date both the injury and its cause are known or should have been known by the exercise of reasonable diligence.

Section 13-80-103.7(3.5) defines a person under disability as including a person under the age of eighteen years, a mental incompetent, persons suffering from any other legal disability, and a person who has been the victim of a sexual offense against a child and who is psychologically or emotionally unable to acknowledge the assault or offense and the harm resulting therefrom; and provides for a tolling of the limitations period during the period of disability. Section 13-80-103.7(3.7) further provides that the action may not be brought “pursuant to” the subsection if the perpetrator is either dead or incapacitated for purposes of rendering a defense. It is this latter subsection which causes plaintiff problems.

In my view, by relying primarily on the last paragraph of plaintiffs affidavit, the majority is essentially opining that the action does not accrue under the general accrual statute, § 13-80-108, C.R.S.1998, until plaintiff is actually aware of the wrongful nature of the acts and the resulting damage, regardless of the reason for her failure to be aware.

At the outset, it seems to me, the majority overlooks the import of the language in § 13-80-108 to the effect that the action accrues when a plaintiff knew of the damage “or should have known by the exercise of reasonable diligence.” At a minimum, we disagree concerning the import of that language under the circumstances presented here.

Plaintiff knew, prior to therapy, that she suffered from emotional and chemical addiction problems. It was those problems which prompted her to seek treatment, counseling, and therapy. What she did not know, or could not recognize, according to both herself and her physician, was the existence and nature of defendant’s alleged conduct and its causal relationship to her problems.

It is also apparent from this record that plaintiff possessed the information relating to defendant’s alleged conduct. That is, plaintiff did not learn of the conduct from third *142parties or from other evidence that was only recently discovered or brought to her attention from outside sources. Rather, incidents of abuse were recorded within plaintiffs memory, but the problem, according to both plaintiff and her physician, was that plaintiff could not access the information, or become aware of the information she already possessed, because it was repressed as a defense mechanism.

Under these circumstances, in my view, plaintiffs complaint falls within the specific language of § 13-80-103.7(3.5)(a), which allows for tolling while “the victim is psychologically or emotionally unable to acknowledge” the alleged sexual conduct. Since § 13-80-103.7(3.5) is a statute addressing the specific and unique factual circumstances presented in this action, I would apply it over the general accrual language found in § 13-80-103.7(1). Persichini v. Brad Ragan, Inc., 735 P.2d 168, 172-73 (Colo.1987).

Because I would conclude that § 13-80-103.7(3.5) applies, I now address plaintiffs remaining arguments regarding the applicability of this statutory provision to her complaint.

Plaintiff contends that the language in § 13-80-103.7(3.5), which provides tolling-while a party is “unable to acknowledge” the sexual misconduct, is designed to provide additional time after a party remembers the misconduct to “acknowledge” it. As a result, she argues that § 13-80-103.7(3.5) is inapplicable because her inability to bring her claim earlier was not due to her inability to acknowledge it, but her inability to remember and know about it. Thus, under plaintiffs argument, when a party is unable to bring a claim because of a disability causing repression of memory, the cause of action accrues upon remembering. The party then has an additional six years to “acknowledge” the claim. Thus, under plaintiffs construction, a party could have twelve years from the time memories of a sexual assault or sexual misconduct surface to file suit.

I would reject this attempt by plaintiff to distinguish “knowledge” of her claims with her ability to “acknowledge” them. As alleged in plaintiffs complaint and affidavit, defendant’s sexual misconduct caused a disability resulting in her repressing her memories. Thus, plaintiffs disability prevented her from acknowledging the alleged abuse. I see no reason to treat repressed memories differently from other disabilities that prevent a victim from acknowledging a claim of sexual assault or sexual misconduct.

Although it is unnecessary to resort to legislative history because the majority did not find the statute ambiguous, I note that my proposed interpretation of § 13-80-103.7(3.5) accords with its legislative history. In introducing the bill adding § 13-80-103.7(3.5), its sponsor, Representative Rreutz, stated:

Six years is not enough time for survivors to heal and work through their complex recovery process that must occur before the pursuit of civil action is a possibility for them. Six years is often not enough time for survivors to remember the abuse. ... This bill would redefine the term disability to include the psychologically and emotional damage done by sexual assault, resulting in the repression of memory and grant survivors the time to uncover this awful secret. It would give survivors of sexual abuse six years from the time their memories suiface, rather than six years fivm the time of the assault, to pursue civil action, (emphasis added)

Hearings on H.B. 1259 before the House Judiciary Committee, 59th General Assembly, First Session (February 11, 1993); see also Hearings on H.B. 1259 before the Senate Judiciary Committee, 59th General Assembly, First Session (March 10,1993).

Because I would hold that the trial court correctly applied § 13-80-103.7(3.5) to this case, I would find no error in its conclusion that summary judgment was proper based upon defendant’s incapacity pursuant to § 13-80-103.7(3.7).