Tyson v. Tyson

Utter, J.

(concurring in the dissent)—I agree fully with the well reasoned opinion of Justice Pearson. I write separately to emphasize that the extension of the discovery rule urged by Nancy Tyson is not an issue that should be left to the Legislature. To do so rejects the reasoning adopted by this court in Wyman v. Wallace, 94 Wn.2d 99, 615 P.2d 452 (1980). It is important for this court to adjust tort law doctrine in response to changes in social values and knowledge. Judicial action is especially appropriate when taken on behalf of individuals who are not organized as a political force and who cannot produce legislative solutions to their problems.

In Wyman v. Wallace, supra, we decided that this court does not need to wait for legislative action on matters of common law tort doctrine. We noted in that case that deference to the Legislature is appropriate in some fields; for example, the Legislature is particularly well suited to conduct the fact-finding necessary for economic legislation. See, e.g., Aetna Life Ins. Co. v. Washington Life & Disab. *95Ins. Guar. Ass'n, 83 Wn.2d 523, 534, 520 P.2d 162 (1974). However, we concluded that because of its own institutional restraints the Legislature is not always in the best position to modify common law tort doctrine. 94 Wn.2d at 101.

This court also has refused to wait for legislative action with respect to application of the statutes of limitations. Although statutes of limitations establish time periods for the commencement of actions, the statutes generally do not establish the point at which the time periods begin to run. See, e.g., RCW 4.16.180, 4.16.100, 4.16.130. Instead, the statutes state that claims run from the time that the cause of action "accrues"—"a term susceptible of interpretation from its very nature." Ruth v. Dight, 75 Wn.2d 660, 666, 453 P.2d 631 (1969); see, e.g., RCW 4.16.130. In 1969 this court concluded that because the Legislature had not spoken definitively on the situation in which an individual learns of medical malpractice only after the statute of limitations has run, " [t]he problem thus remains with the judiciary, for . . . the courts, as instruments of the common law and in furtherance of this traditional role to prevent injustice, should try to strike ... a balance." Ruth v. Dight, 75 Wn.2d at 665. Under our precedents it is thus within the province of this court to extend the discovery rule to the case of Nancy Tyson.

Increased knowledge and increased public awareness have produced the issue before us. Child abuse has attracted significant attention only since 1962, when the "battered child syndrome" was first defined. Public and professional attention have been directed toward child sexual abuse—incest in particular—for an even shorter period of time. Comment, Statutes of Limitations in Civil Incest Suits: Preserving the Victim's Remedy, 7 Harv. Women's L.J. 189, 192-93 (1984). In fact, mental health therapists and other professionals largely denied the prevalence of incestuous abuse until the 1970's. 7 Harv. Women's L.J., at 192. It is only in the past decade or so that professionals have documented the damages of incestuous abuse and the "blocking out" that the trauma of the abuse can cause.

*96This court cannot rely on the Legislature to extend the discovery rule in response to these recent developments. Legislatures rarely reexamine tort law in light of recent changes. Peck, The Role of the Courts and Legislatures in the Reform of Tort Law, 48 Minn. L. Rev. 265, 268-70 (1963). Legislators consider so many issues in so little time that only the most compelling needs can be addressed. Peck, 48 Minn. L. Rev. at 270-75.

This court also cannot rely on tort victims to bring issues of tort reform to the attention of the Legislature. Tort victims do not constitute a well organized lobbying group. They are not brought together by a common interest in legislation addressed to the future; instead, each plaintiff usually simply desires redress for past injuries. Peck, Comments on Judicial Creativity, 69 Iowa L. Rev. 1, 13 (1983).

In this case, especially, we can hardly expect Nancy Tyson to evoke a response from the Legislature. An adult survivor of child sexual abuse cannot elicit the same public support as a child victim. Survivors with experiences similar to those of Nancy may well be reluctant to reveal their painful experiences by lobbying and testifying at legislative hearings. The public agencies and private groups that represent these individuals do not have the resources to launch such a campaign.

In the past this court has been unafraid to change tort law in response to modern developments. In Freehe v. Freehe, 81 Wn.2d 183, 500 P.2 771 (1972), for example, we abolished the traditional immunity between spouses because of our conclusion that "[mjodern realities do not comport with the traditional 'supposed unity' of husband and wife." 81 Wn.2d at 187. In Hunsley v. Giard, 87 Wn.2d 424, 553 P.2d 1096 (1976), we acknowledged societal acceptance of emotional distress as an injury in and of itself with the comment that "[t]he old rationales are simply no longer viable". 87 Wn.2d at 433.

This court should not hesitate to apply the discovery rule on behalf of adult survivors of child sexual abuse who have repressed their memories during the period of the statute of *97limitations. " [Flexibility is necessary to enable the law to adapt itself to social change. As a society alters, so do its needs, and a serviceable legal system must be able in its development to take account of new social, political and economic requirements." (Footnote omitted.) J. Salmond, Jurisprudence 65 (12th ed. 1966). It is particularly appropriate for this court to take action on behalf of a group that cannot obtain representation in the political process. Peck, 69 Iowa L. Rev. at 45.

For these reasons I concur in the dissenting opinion.

Dolliver, C.J., and Pearson, J., concur with Utter, J.

Reconsideration denied January 6, 1987.