Doe v. Roe

LANKFORD, Judge,

Dissenting in Part.

The majority holds that the plaintiffs claims arising out of childhood sexual abuse are barred by the statute of limitations as a matter of law. I respectfully but vigorously dissent for this reason: Whether the discovery rule preserves plaintiffs claims is a question of fact for the jury, not a matter of law for the court.6

The plaintiff contends that her recall of sexual abuse by her father was repressed. The “substantial majority” of courts hold that the discovery rule preserves the claims of those suffering from repressed memory. Farris v. Compton, 652 A.2d 49, 59 (D.C.App.1994); Olsen v. Hooley, 865 P.2d 1345, 1349 (Utah 1993). This is consistent with Arizona’s discovery rule, which prevents the period of limitations from running until the plaintiff knew or should have known of the defendant’s conduct. Kowske v. Life Care Centers of America, 176 Ariz. 535, 537, 863 P.2d 254, 256 (App.1993). The plaintiff must know or have reasonable opportunity to know “both the what and who elements of causation,” Lawhon v. L.B.J. Institutional Supply Inc., 159 Ariz. 179, 183, 765 P.2d 1003, 1007 (App.1988), and the fact of injury. Gust, Rosenfeld & Henderson v. Prudential Ins. Co., 182 Ariz. 586, 591, 898 P.2d 964, 969 (1995).

In this appeal, in which we review a summary judgment rejecting all of the plaintiffs claims, the issue is whether genuine ques*613tions of fact exist that plaintiff should have known of her causes of action more than two years before she filed this action. I dissent because such questions do exist and require that a jury decide whether the statute of limitations bars the claims.

Plaintiff asserted claims against two defendants: against her father for the abuse and against her mother for negligence in failing to protect her. Although the majority treats them as identical, these are separate claims raising somewhat different discovery rule questions.

The claim against the mother is that she negligently faded to protect plaintiff from the abuse. This claim did not necessarily arise at the same time as the claim against the father for the abuse. As the plaintiff’s complaint recognized, the mother was not negligent unless and until she was aware of, or should have been aware of, the father’s abuse.

Doe v. Board of Educ. of Hononegah Community High School Dist. No. 207, 833 F.Supp. 1366 (N.D.Ill.1993) illustrates that the plaintiff’s cause of action against her mother did not necessarily accrue at the same time as her claim against her father. In Doe, the plaintiff was a student who allegedly had been sexually abused by a teacher. She sued the school board and school district for civil rights violations for having failed to report sexual abuse and to discipline the teacher, and for having discouraged and concealed abuse complaints. Id. at 1371. The court denied a motion to dismiss these claims, holding that even if the abuse claim against the teacher was barred, the claims against the school defendants were not:

If this were a claim against the abuser based entirely on injuries arising from the sexual abuse, plaintiff’s cause of action would certainly be time barred.
The theory of plaintiff’s case, however, is not simply that she was sexually abused but that she was abused by a teacher under circumstances created by defendants. In other words, had it not been for defendants’ alleged failure to properly take action to prevent abuse by the teacher, plaintiff would not have been abused by him. While she may have known that she was abused, there is nothing in the complaint to remotely suggest that she knew or should have known of the alleged acts or omissions on the part of defendants.

Id. at 1376.

Similarly, plaintiff’s claim against her mother accrued when she knew or should have known that her mother had failed to protect her. That depends in part on when the plaintiff discovered that the mother knew of the abuse and thus had an opportunity to intervene to protect the child.

The parties’ motion papers did not discuss when the plaintiff’s cause of action against her mother arose. The mother’s summary judgment motion on the limitations issue merely joined in the father’s motion. The limitations issues applicable to the two defendants differed, however. The mother’s motion failed to address the issues applicable to the claim against her and as a result, the mother’s motion failed to demonstrate her entitlement to judgment as a matter of law.

The majority argues that plaintiff’s failure to point out the defect in the mother’s summary judgment motion warrants entry of judgment against the plaintiff. This is not correct. The summary judgment movant bears the burden of showing that she is entitled to judgment:

The burden of persuading the trial judge that summary judgment was warranted fell to the bank as the party seeking judgment. If the bank’s motion failed to make a prima facie case — either by omitting evidence of essential elements of its claim or providing evidence which supported conflicted inferences on a material issue — then there was no basis for awarding summary judgment. Whether or not the Allyns filed a written response to the motion was not decisive.

United Bank of Arizona v. Allyn, 167 Ariz. 191, 197, 805 P.2d 1012, 1018 (App.1991). A movant cannot, for example, obtain judgment by arguing that her motion should be granted because “the moon is in the seventh house and Jupiter is aligned with Mars, and thus all the signs are favorable.” That is not a prima facie motion. A motion that fails to show entitlement to judgment must be denied. *614Because we review summary judgments de novo, id., we must reverse a judgment that is unwarranted.

That is the ease here. The mother filed a motion that merely joined the father’s motion. However, the father’s motion addressed the limitations issues that applied to him. The issues pertaining to the claims against the mother were very different. The mother never addressed these issues, and thus failed to make a prima facie motion for summary judgment. Whether the plaintiff pointed it out or not is immaterial; the deficiency in the mother’s motion is apparent and we cannot ignore it.

The claims against the father are also not subject to summary judgment, but for different reasons. Preliminarily, I note that each instance of abuse gives rise to a separate cause of action. Doe v. Doe, 671 So.2d 466, 469-70 (La.Ct.App.1995).7 Thus, the limitations and discovery rule questions must be answered with respect to each incident.

The issue is whether there is any dispute of fact that plaintiff knew or should have known of her claims more than two years before she filed the action. The record indicates that plaintiff was aware of at least one incident in July 1989, more than two years before she filed. This claim is barred.

However, plaintiff’s awareness of one incident does not imply knowledge of others.8 This is illustrated by Nicolette v. Carey, 751 F.Supp. 695 (W.D.Mich.1990), a case involving the tolling of the statute based on the “disability” of repressed memory. In Nicolette, a sexual abuse victim who allegedly suffered from repressed memories of abuse had become aware of various incidents at different times. The court held that the disability was not terminated until plaintiff recovered her entire recollection. “[T]he continued repression of further incidents within the tolling period saves her cause of action from lapsing.” Nicolette, 751 F.Supp. at 699.9 Thus, the fact that a plaintiff recalls one incident does not mean that she recalls all similar incidents or that the discovery rule cannot be applied to unremembered events.

We must therefore carefully examine the record to determine what the plaintiff knew about the defendant’s other conduct, and when she knew it. That examination reveals that plaintiff recalled additional incidents of abuse in May 1990 and filed her action in May 1992, within the two year limitations period.

Of course, whether plaintiffs memory was actually repressed and remained unrevived until May 1990 is a question of fact for the jury. Olsen, 865 P.2d at 1350; Hammer v. Hammer, 142 Wis.2d 257, 418 N.W.2d 23, 27 (App.1987). But that factual question cannot be resolved by summary judgment.

The majority nevertheless appears to argue that plaintiffs claims are barred because her July 1989 recollection placed her on sufficient notice to require further investigation, somehow rendering irrelevant her discovery in May of 1990 of additional incidents. The majority’s position apparently is that plain*615tiffs discovery of one tort started the limitations period for all torts by the same defendant. This argument is flawed for several reasons.

First, the fact that plaintiff recalled one incident does not mean that she recalled — or that she should have recalled — others. See Nicolette, 751 F.Supp. at 699. It is entirely possible that a victim might reasonably think that a remembered incident occurred as an isolated event rather than a part of a series of incidents. No reason consistent with the discovery rule warrants barring an action based on unremembered events.

Second, I find no support for the majority’s “investigate and discover” standard in the many Arizona cases applying the discovery rule to tort actions. While the cases refer to the plaintiffs obligation to use reasonable diligence in discovering the facts, this is no more than a restatement of the “should have known” standard of the discovery rule. See, e.g., Mayer v. Good Samaritan Hospital, 14 Ariz.App. 248, 250, 482 P.2d 497, 499 (1971) (“ “While the plaintiff certainly must exercise reasonable diligence, to inform himself of the facts and how they relate to each other, the statutes should not begin to run until through reasonable diligence the plaintiff should have reason to know that a claim exists.’ ”) (citation omitted).

The Arizona case cited by the majority, and similar authorities, merely hold that a plaintiff need not know all the details of a fraud before being charged with sufficient knowledge to commence the limitations period. Richards v. Powercraft Homes, Inc., 139 Ariz. 264, 266, 678 P.2d 449, 451 (App.1983), vacated in part, 139 Ariz. 242, 678 P.2d 427 (1984); see also Alaface v. National Inv. Co., 181 Ariz. 586, 591, 892 P.2d 1375, 1380 (App.1994) (“[Plaintiffs] did not have to know all of the underlying details of the misrepresentation before their cause of action accrued.”). This is consistent with, not contrary to, the “should have known” standard of the discovery rule.10 Arizona courts have adhered consistently to this standard, and it should be applied in this case.

Third, the majority’s argument fails even if its “investigate and discover” standard exists. The argument overlooks two things. First, it misses the thrust of plaintiff’s argument: As a result of the trauma of her victimization, her psyche repressed the memory of abuse. If that is so, then what “inquiry” should she have undertaken to restore the memory of other incidents after having recalled a single incident? This is not a matter of mere investigation, but one of deep psychological trauma.11 It is not enough that the victim suspect the abuse; the victim must be able to discover it so that she can sue the abuser. This is a straightforward application of the discovery rule, not an alteration of it as the majority suggests.

The majority’s argument also overlooks the evidence that plaintiff did exercise due diligence. As the majority notes, it was through plaintiffs efforts in painful, long-term counseling that she subsequently recalled additional incidents. These efforts were so traumatic that plaintiff became suicidal and required psychiatric hospitalization. How much more diligent could plaintiff have been than this? At the very least, whether plaintiff acted with sufficient diligence is a fact question for the jury.

In my view, the evidence creates issues of fact about plaintiff’s discovery of her claims. Should she have known the facts more than two years before she filed her complaint? *616Only a jury can answer that question. Accordingly, I respectfully dissent.

. I agree with the majority’s conclusions regarding disability and estoppel.

. The majority argues that this view fails to protect a defendant from multiple actions. Any other rule would destroy a plaintiff's cause of action before it accrued, however. Moreover, viewing separate physical assaults as separate torts merely reflects fundamental tort concepts. The majority’s argument distills into nothing more than dissatisfaction with the discoveiy rule itself. I find no persuasive reason to refuse to apply the discoveiy rule to each cause of action.

. The majority implies that the record shows that plaintiff recalled many or all of the incidents in early 1990. The record is simply ambiguous, and does not show more than that plaintiff initially recalled one incident. Because the facts must be viewed favorably to the plaintiff on review of the summary judgment against her, and because defendants bore the burden of showing their entitlement to judgment, the record cannot be construed against plaintiff on this point. In this respect, this case contrasts sharply with Florez v. Sargeant, 185 Ariz. 521, 528, 917 P.2d 250, 257 (1996), in which the plaintiffs conceded their awareness of the identity and conduct of their abusers.

. The majority's contention that Nicolette has been undercut is incorrect, for the case has not been questioned on this point. Moreover, Lemmerman v. Fealk, 449 Mich. 56, 534 N.W.2d 695 (1995) undermines Nicolette only by declining to apply both the discovery rule and the disability rule to sexual abuse repressed memory cases. That holding is of no importance for our purposes because it is one that both I and the majority reject: the discovery rule, we hold today, does apply. Thus, Lemmerman is unpersuasive.

. To the extent that these cases stand for any broader proposition that conflicts with the discovery rule, I believe they were incorrectly decided.

. The classical psychological responses to incest trauma are numbing, denial, and amnesia____ ‘Many, if not most, survivors of child sexual abuse develop amnesia that is so complete that they simply do not remember that they were abused at all; or ... they minimize or deny the effects of the abuse so completely that they cannot associate it with any later consequences.’ Many victims of incest abuse exhibit signs of Post-Traumatic Stress Disorder ("PTSD”), a condition characterized by avoidance and denial that is associated with survivors of acute traumatic events such as prisoners of war and concentration camp victims.

Jocelyn B. Lamm, Easing Access to the Courts for Incest Victims: Toward an Equitable Application of the Delayed Discovery Rule, 100 Yale L.J. 2189, 2194 (1991) (citations omitted).