Wolf v. State

FILE THIS OPINION WAS FILED
FOR RECORD AT 8 A.M. ON
SEPTEMBER 7, 2023
IN CLERK’S OFFICE
SUPREME COURT, STATE OF WASHINGTON
SEPTEMBER 7, 2023
ERIN L. LENNON
SUPREME COURT CLERK

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

BRUCE A. WOLF, as Personal Representative )
of the Estate of TIMOTHY JONES, deceased, ) No. 101477-5
)
Petitioner, )
)
v. ) En Banc
)
STATE OF WASHINGTON, )
)
Respondent. ) Filed: September 7, 2023
_______________________________________)

MADSEN, J.—At issue in this case is the triggering event for the statute of

limitations on childhood sexual abuse actions. RCW 4.16.340(1)(c) provides, “All claims

or causes of action” based on childhood sexual abuse shall be commenced within “three

years of the time the victim discovered that the act caused the injury for which the claim

is brought.” (Emphasis added.) Timothy Jones’ estate (Estate) brought negligence and

wrongful death claims against the State. On cross motions for summary judgment, the

trial court concluded the statute of limitations for negligence claims begins when a victim

recognizes the causal connection between the intentional abuse and their injuries. The
No. 101477-5

court granted summary judgment for the State and dismissed the Estate’s claims as time

barred. The Court of Appeals affirmed.

RCW 4.16.340(1) covers all claims arising from intentional childhood sexual

abuse, including negligence claims against individuals and entities for failing to prevent

alleged abuse. C.J.C. v. Corp. of Cath. Bishop of Yakima, 138 Wn.2d 699, 708-09, 985

P.2d 262 (1999) (plurality opinion). By encompassing intentional and negligence claims,

RCW 4.16.340 anticipates that multiple actors can be involved in childhood sexual abuse.

Such a claim must be based on intentional conduct, but the act triggering the statute of

limitations is the alleged wrongful action and resulting injury—in this case, the State’s

negligence in protecting Timothy 1 from sexual abuse while in foster care.

No evidence has been presented that Timothy made the causal connection between

that alleged act and his injuries until August or September 2017, and the Estate filed its

claims on March 12, 2020, within RCW 4.16.340(1)(c)’s three-year time period.

Accordingly, we reverse summary judgment and remand this case to the trial court for

further proceedings consistent with this opinion.

BACKGROUND

Timothy was born to Jaqueline Jones in 1990. 2 In 2003, Jacqueline lost her home

to foreclosure, and Timothy moved in with Price Nick Miller Jr., a family friend. A

1
For clarity, we refer to Timothy Jones and other members of his family by their first names.
No disrespect is intended.
2
The facts are taken from the Estate’s complaint. No party disputes the alleged facts.

2
No. 101477-5

month later, the Department of Children, Youth, and Families (DCYF) 3 was alerted that

Miller was paying too much attention to children who were not his own. After

investigating the report, DCYF removed Timothy from Miller’s home based on this

inappropriate behavior.

Timothy was briefly returned to Jacqueline but was again removed due to

suspected neglect. In November 2003, Timothy was placed in foster care and DCYF

filed a dependency petition. In December 2003, Timothy’s counselor informed

Timothy’s social worker that Miller had visited Timothy at his foster home even though

the foster parents had been told Timothy was not to have outside contact. Timothy was

then placed in a new foster home. The new foster father told Timothy’s counselor that

Miller had visited the home, and the counselor noted that Miller had been present for at

least two supervised visits between Timothy and Jacqueline. At another visitation,

Timothy’s counselor told Miller to leave multiple times, but Miller remained hiding in

the parking lot. DCYF staff expressed concerns that Miller appeared to be stalking

Timothy.

Timothy’s dependency case was dismissed in 2006, and he moved back in with

Jacqueline. Later that year, Timothy told a counselor that Miller had abused him

sexually, physically, and emotionally from 1998 to 2006. The counselor reported this

3
The Estate’s complaint refers to DCYF. The Estate explains that at the time the abuse
occurred, child welfare services were conducted by the Department of Social & Health Services
(DSHS). In 2018, child protective services were transferred from DSHS to DCYF. RCW
43.216.906. The Court of Appeals’ decision and supplemental briefing here refer to DCYF,
DSHS, or the State interchangeably. We refer to DCYF as the agency responsible for Timothy’s
dependency case and to the State as the party representing DCYF on appeal.

3
No. 101477-5

abuse, and Miller was arrested. In 2008, Miller pleaded guilty to second degree child

rape connected to his abuse of Timothy and second degree child molestation related to

another child. Miller was sentenced to 119 months to life in prison.

In 2007 or 2008, Jacqueline sued Miller on Timothy’s behalf. The attorney did

not advise Timothy or his mother that there may be a lawsuit against the State or that the

State may be liable for allowing Miller’s abuse to occur. The case appears to have

settled. No other information about the suit is included in the record.

In 2012, Timothy became romantically involved with Jimmy Acevedo. Sometime

in mid-2017, and prompted by a news story about childhood sexual abuse, Timothy and

Acevedo discussed whether Timothy may have a claim against the State. Acevedo

recommended that Timothy consult a lawyer. In fall 2017, Timothy contacted a firm that

began investigating Timothy’s case. On June 2, 2018, Timothy committed suicide.

Jacqueline was appointed personal representative of Timothy’s estate. She filed

claims for negligence, negligent investigation, and wrongful death against the State on

March 12, 2020. Jacqueline, Acevedo, and Timothy’s half-brother submitted

declarations stating that Timothy had never told them or indicated he thought he had a

claim against the State or held the State responsible for his abuse.

On September 3, 2020, Bruce Wolf was appointed as the successor personal

representative for Timothy’s estate. The State then pleaded the affirmative defense that

the Estate’s claims were barred by RCW 4.16.340’s statute of limitations.

4
No. 101477-5

The Estate filed for partial summary judgment, arguing that its claims were

governed by RCW 4.16.340(1)(c) and that no evidence showed that Timothy discovered

the link between the State’s negligence and his injuries. The State filed a cross motion

for summary judgment, asserting that the Estate had the burden of proof to show its

claims were timely and no such evidence was submitted. In response, the Estate filed a

declaration from Dr. Gilbert Kliman, who presented “an expert psychiatric opinion” that

Timothy could not be expected to independently know the connection between his

damages and the State’s negligence. Clerk’s Papers at 111.

The parties disagreed as to which bore the burden of proof that Timothy knew of

the connection between the alleged wrongful act and his injuries. The Estate argued that

it was the State’s burden to prove the statute of limitations had run as an affirmative

defense, while the State answered that the Estate had the burden to provide some amount

of evidence to overcome summary judgment and had not done so—the inference created

by the declarations was insufficient, according to the State.

The trial court agreed with the State. The court concluded that there must be some

evidence that Timothy recognized his injuries within the statute of limitations. The court

also ruled that the declarations were irrelevant because it was the plaintiff’s burden to

show evidence that Timothy discovered his claim within three years. Based on the

burden of proof for the statute of limitations, the trial court granted summary judgment

for the State and denied the Estate’s motion.

5
No. 101477-5

The Estate appealed the dismissal of its claims via summary judgment and the trial

court’s imposition of the burden of proof. Wolf v. State, 24 Wn. App. 2d 290, 292, 519

P.3d 608 (2022). The Court of Appeals affirmed summary judgment in a split opinion.

Id. at 314.

The majority decision focused on the term “act,” which RCW 4.16.340(1) does

not define but which is referenced in subsection (5). Id. at 305. In defining “childhood

sexual abuse,” RCW 4.16.340(5) provides,

As used in this section, “childhood sexual abuse” means any act committed
by the defendant against a complainant who was less than eighteen years of
age at the time of the act and which act would have been a violation of
chapter 9A.44 RCW or RCW 9.68A.040 or prior laws of similar effect at the
time the act was committed.

(Emphasis added.) The majority applied this definition to the term “act” in subsection

(1)(c), interpreting the “act that caused the injury for which the claim is brought” to mean

specifically the intentional conduct referenced in subsection (5). Wolf, 24 Wn. App. 2d at

305-06. In short, the statute contained “no language . . . that suggests that a different

‘act’ other than the childhood sexual abuse that caused the injuries may form the basis for

calculating the running of the statute of limitations.” Id. at 306. The statute specifies

“act” and not “claim,” therefore, the Court of Appeals concluded, when a victim knows

subjectively of the causal connection between the intentional act of childhood sexual

abuse and their injuries, the statute of limitations for all claims, including negligence,

begins to run. Id. The record shows Timothy connected Miller’s abuse to his injuries by

2008 after reporting the abuse, Miller’s guilty plea, and Jacqueline’s suit on Timothy’s

6
No. 101477-5

behalf. Id. at 308-09. According to the majority, Timothy had made the required causal

connection when he was a minor in 2006. Id. at 309.

The majority also noted that RCW 4.16.340(1)(c) was tolled until Timothy turned

18 years old, which occurred in 2008; Timothy then had three years to bring suit against

the State—in 2011. Id. Because the Estate filed its lawsuit in 2020, more than three

years later, the majority held the statute of limitations expired and the Estate’s claims

were untimely. Id. 4

Next, the Court of Appeals’ majority addressed the burden of proof. Id. at 311-13.

At trial, the court granted the State’s motion for summary judgment on statute of

limitations grounds, and as the moving party, it was the State’s burden to show the

absence of a genuine issue of material fact. Id. at 313. It was therefore the State’s

burden to present evidence showing RCW 4.16.340(1)(c)’s statute of limitations had run

based on Timothy’s awareness of the link between abuse and injury. Id. The Court of

Appeals then concluded that the State met its burden below. Id. No party challenges this

conclusion.

The dissenting opinion agreed with the majority analysis of the burden of proof

but disagreed with its interpretation of RCW 4.16.340(1)(c). Id. at 314, 318 n.13. In the

4
The majority also rejected the State’s argument that the common law discovery rule applies to
negligence claims under RCW 4.16.340. Wolf, 24 Wn. App. 2d at 309-10. Tort suits accrue
when the act or omission occurs, but the common law discovery rule tolls this general rule until
the plaintiff knows or through reasonable diligence should know the facts needed for a legal
claim. Id. at 310. Because C.J.C., 138 Wn.2d at 714, held that .340 encompasses intentional and
negligence claims, they are not subject to the common law rule. Id. at 311. Neither the State nor
the Estate challenges this holding.

7
No. 101477-5

dissent’s view, the term “act” in .340(1)(c) refers to the conduct of different tortfeasors,

such as the negligent conduct of a third party causing the injury for which the claim is

brought. Id. at 315. C.J.C. clarified that RCW 4.16.340 encompasses, as its plain

language shows, all claims based on intentional childhood sexual abuse. 138 Wn.2d at

709, 714. The Wolf dissent would have applied the reasoning in an unpublished Court of

Appeals, Division One, case that considered RCW 4.16.340(1)(c) and C.J.C. to hold that

the causal connection must include intentional conduct and injury as well as negligent

conduct and injury. Wolf, 24 Wn. App. 2d at 316 (citing Kirchoff v. City of Kelso, No.

73666-3-I, slip op. at 10 (Wash. Ct. App. Oct. 12, 2015) (unpublished),

https://www.courts.wa.gov/opinions/pdf/736663.pdf). The dissent characterized as a

logical fallacy the majority’s conclusion that “act” means only intentional sexual abuse.

Id. at 316-17. It made “little sense,” the dissent reasoned, to hold a cause of action

against one tortfeasor accrued when the victim became aware of a separate injury caused

by a different tortfeasor. Id. at 317. Instead, the injury in question is, for the purposes of

the statute of limitations, the injury “‘for which the claim is brought.’” Id. (quoting RCW

4.16.340(1)(c)).

The Estate sought review in this court, which we granted. We received amici

curiae briefing in support of the Estate from the National Crime Victim Law Institute;

Connelly Law Offices; and (as a group) the Washington Defender Association, Family

Violence Appellate Project, Sexual Violence Law Center, and Legal Voice. 5

5
The Estate moved to strike a portion of the State’s answer to amici curiae. The motion was
passed to the merits, which is addressed below.

8
No. 101477-5

ANALYSIS

We review summary judgment orders de novo, considering the evidence and

reasonable inferences in the light most favorable to the nonmoving party. Keck v.

Collins, 184 Wn.2d 358, 370, 357 P.3d 1080 (2015). Summary judgment is proper when

no genuine issue of material fact exists and the moving party is entitled to judgment as a

matter of law. Id.; CR 56(c).

The meaning of a statute is a question of law we review de novo. Lake v.

Woodcreek Homeowners Ass’n, 169 Wn.2d 516, 526, 243 P.3d 1283 (2010) (citing

Rozner v. City of Bellevue, 116 Wn.2d 342, 347, 804 P.2d 24 (1991)). “Our fundamental

purpose in construing statutes is to ascertain and carry out the intent of the legislature.

We determine the intent of the legislature primarily from the statutory language. In the

absence of ambiguity, we will give effect to the plain meaning of the statutory language.”

In re Marriage of Schneider, 173 Wn.2d 353, 363, 268 P.3d 215 (2011) (citations

omitted). Plain meaning “is discerned from all that the Legislature has said in the statute

and related statutes which disclose legislative intent about the provision in question.”

Dep’t of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 11, 43 P.3d 4 (2002).

At issue in this case is the triggering event for the statute of limitations for

childhood sexual abuse claims in RCW 4.16.340. “An action accrues, generally

speaking, when a party has the right to apply to a court for relief.” Gunnier v. Yakima

Heart Ctr. Inc., P.S., 134 Wn.2d 854, 859, 953 P.2d 1162 (1998) (citing Malnar v.

Carlson, 128 Wn.2d 521, 529, 910 P.2d 455 (1996)). Injury is one of the elements of a

9
No. 101477-5

negligence cause of action. Id. “‘[U]ntil a plaintiff suffers appreciable harm as a

consequence of negligence, [they] cannot establish a cause of action.’” Id. (quoting

Gazija v. Nicholas Jerns Co., 86 Wn.2d 215, 219, 543 P.2d 338 (1975)).

Black’s Law Dictionary defines a “statute of limitations” as “[a] law that bars

claims after a specified period; specif[ically] a statute establishing a time limit for suing

in a civil case, based on the date when the claim accrued (as when the injury occurred or

was discovered). • The purpose of such a statute is to require diligent prosecution of

known claims, thereby providing finality and predictability in legal affairs and ensuring

that claims will be resolved while evidence is reasonably available and fresh.” BLACK’S

LAW DICTIONARY 1707 (11th ed. 2019). A statute of limitations is “‘designed to

promote justice by preventing surprises through the revival of claims that have been

allowed to slumber until evidence has been lost, memories have faded, and witnesses

have disappeared.’” Id. (quoting Ord. of R.R. Telegraphers v. Ry. Express Agency, Inc.,

321 U.S. 342, 348-49, 64 S. Ct. 582, 88 L. Ed. 788 (1944)).

RCW 4.16.340(1) is a special statute of limitations that applies to civil actions for

injuries resulting from childhood sexual abuse. B.R. v. Horsley, 186 Wn. App. 294, 299,

345 P.3d 836 (2015). The provision states,

(1) All 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 shall be commenced within the later of the
following periods:
(a) Within three years of the act alleged to have caused the injury or
condition;

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No. 101477-5

(b) Within three years of the time the victim discovered or
reasonably should have discovered that the injury or condition was caused
by said act; or
(c) Within three years of the time the victim discovered that the act
caused the injury for which the claim is brought:
PROVIDED, That the time limit for commencement of an action
under this section is tolled for a child until the child reaches the age of
eighteen years.
....
(5) As used in this section, “childhood sexual abuse” means any act
committed by the defendant against a complainant who was less than
eighteen years of age at the time of the act and which act would have been a
violation of chapter 9A.44 RCW or RCW 9.68A.040 or prior laws of
similar effect at the time the act was committed.

RCW 4.16.340. The legislature found that victims of childhood abuse may not be able to

understand or connect past abuse and emotional harm or damage until many years later.

LAWS OF 1991, ch. 212, § 1. Victims may be aware of injuries related to childhood

sexual abuse, but more serious injuries may be discovered many years later. Id. These

findings were prompted in part to reverse this court’s decision in Tyson v. Tyson, 107

Wn.2d 72, 727 P.2d 226 (1986), and the line of cases stating that “discovery of any injury

whatsoever caused by an act of childhood sexual abuse commences the statute of

limitations.” Id.

C.J.C. explained the legislature’s response to Tyson. In Tyson, the court held the

discovery rule did not apply to intentional tort claims where the plaintiff had suppressed

the memory of the abuse during the period of the statute of limitations. C.J.C., 138

Wn.2d at 706 n.4 (citing Tyson, 107 Wn.2d at 79). By enacting RCW 4.15.340,

lawmakers ensured that the discovery of an earlier, less serious injury should not affect

the time period to bring claims based on injuries discovered later. LAWS OF 1991, ch.

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212, § 1. In other words, the memory of harm for a childhood abuse victim may reveal

itself at different points in time. As long as the predicate of that harm is the childhood

sexual abuse, RCW 4.16.340 provides a mechanism for redress.

Lawmakers intended RCW 4.16.340 to provide a “broad and generous application

of the discovery rule to civil actions for injuries caused by childhood sexual abuse . . .

who too often were left without a remedy under” prior statutes of limitations. C.J.C., 138

Wn.2d at 712. This special statute of limitations tolls civil claims based on intentional

childhood sexual abuse. The time limit does not begin to run when a victim discovers an

injury, rather the statute of limitations focuses on when a victim discovers the causal link

between abuse and injury for which the suit is brought. Korst v. McMahon, 136 Wn.

App. 202, 208, 148 P.3d 1081 (2006) (citing RCW 4.16.340(1)(c)). This is because the

legislature specifically anticipated that victims may know they are suffering emotional

harm but may not be able to understand the connection between those symptoms and the

abuse. Id.

Subsection (c) generally applies in two instances. First, when a victim is aware of

the abuse and that they suffered harm as a result, but the victim discovers a new and

qualitatively different injury from the abuse. Carollo v. Dahl, 157 Wn. App. 796, 801,

240 P.3d 1172 (2010). Second, when the victim is aware of the abuse and injury but

discovers a causal connection of which they were previously unaware between the

wrongful act and the harm. Hollmann v. Corcoran, 89 Wn. App. 323, 334, 949 P.2d 386

(1997).

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No. 101477-5

Here, the parties dispute what “act” triggers the three-year statute of limitations for

negligence claims based on childhood sexual abuse. The State contends the victim’s

connection between the intentional act and injury begins the clock for all claims and

urges us to affirm the Court of Appeals’ majority opinion. The Estate argues that the

victim’s connection between the negligent conduct and resulting harm is the triggering

event, in accordance with the dissent. We agree with the Estate.

RCW 4.16.340(1) states explicitly that “[a]ll claims or causes of action” based on

intentional childhood sexual assault must be brought within a three-year period.

(Emphasis added.) Guided by the expansive scope of .340(1), C.J.C. held that the statute

applies to all tort claims based on childhood sexual abuse, including negligence actions.

138 Wn.2d at 709. RCW 4.16.340(1)’s broad language is critical to its interpretation.

See id. at 708-09 (“Subsection (1) of RCW 4.16.340 controls the scope of the statute’s

applicability.”). Because the statute encompasses all claims and causes of actions

stemming from childhood sexual abuse, it anticipates that other actors can be involved,

namely the direct perpetrator and third parties.

This recognition—that multiple tortfeasors can be sued under .340—clarifies

subsection (c). RCW 4.16.340(1)(c) states that a victim must bring a claim based on

childhood sexual abuse “[w]ithin three years of the time the victim discovered that the act

caused the injury for which the claim is brought.” (Emphasis added.) For a negligence

suit, the “act” in subsection (c) thus refers to the third party’s conduct causing the injury

for which a victim seeks damages in tort. Determining when the three-year period begins

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No. 101477-5

for such claims is a question of fact: when the victim made the causal connection

between the negligent act and the resulting injury. RCW 4.16.340(1)(c).

The State and the Court of Appeals’ majority opinion read the term “act” too

narrowly. When a victim experiences intentional childhood sexual abuse, they may not

know other tortfeasors were involved. Many years later, when the victim becomes aware

of that involvement, they would be precluded from seeking redress because they knew of

the direct abuse and did not bring a suit against a different tortfeasor within three years.

Subsection (c), unlike subsection (b), does not contain language requiring that a victim

“reasonably should have discovered that the injury or condition was caused by said act.”

RCW 4.16.340(1)(b). Yet the State’s interpretation would impose such a requirement.

Where the legislature omits language from a statute, this court will not read language into

it. State v. Cooper, 156 Wn.2d 475, 480, 128 P.3d 1234 (2006).

Moreover, the State’s reading of the term “act” throughout RCW 4.16.340 to mean

only the intentional sexual abuse implies that no third-party negligence claim is available.

This plainly contradicts the plain meaning of RCW 4.16.340(1) and C.J.C., which makes

clear that childhood sexual abuse actions include intentional and negligent tort claims.

The State also cites to RCW 4.16.340(2) as supporting its narrow definition of “act.”

That provision allows a victim to elect “an act,” rather than establishing a specific “act in

a series of continuing sexual abuse or exploitation incidents caused the injury complained

of, but may compute the date of discovery from the date of discovery of the last act by

the same perpetrator.” RCW 4.16.340(2) explicitly applies to acts of intentional abuse.

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No. 101477-5

For such claims brought under .340(1)(c), .340(2) provides flexibility for a victim in

pleading their intentional tort claim. RCW 4.16.340(2) does not control the meaning of

“act” in .340(1)(c). Subsection (1)(c) does not contain the same modifying language as

subsection (2), that states the “act in a series of continuing sexual abuse . . . may compute

the date of discovery from the date of discovery of the last act by the same perpetrator

which is part of a common scheme or plan of sexual abuse or exploitation.” (Emphasis

added.)

Knowledge of the intentional abuse is a prerequisite, it is the predicate conduct on

which all claims must be based under .340. But a victim’s specific knowledge of an

intentional act says nothing about the conduct of other tortfeasors. Considering the plain

language of the statute, which encompasses all claims or suits based on childhood sexual

abuse, it would make little sense for a separate claim regarding the actions of one

tortfeasor to accrue based on knowledge of a different tortfeasor. See Wolf, 24 Wn. App.

2d at 317.

The expansive scope of .340(1) makes clear that the three-year statute of

limitations applies to the act causing the injury for which a claim is brought. That is, for

claims of intentional sexual abuse, the statute of limitations runs when the victim makes

the causal connection between the intentional act and resulting injury. For claims of

third-party negligence based on intentional sexual abuse, the statute of limitations runs

when a victim makes the causal connection between the third party’s negligent act and

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No. 101477-5

resulting injury. 6 This interpretation furthers the underlying purpose of RCW 4.16.340—

to provide broad protection for victims of childhood sexual abuse and generously apply

the rules of discovery to “all” tort claims, both intentional and negligent, for which the

gravamen of the claim is the childhood sexual abuse. RCW 4.16.340(1); C.J.C., 138

Wn.2d at 709-10, 712.

We hold that pursuant to the plain language of RCW 4.16.340(1)(c), a negligence

claim accrues when a victim recognizes the connection between a third party’s wrongful

conduct and the victim’s resulting injury. Because the statute is plain on its face, it is

unambiguous and an unambiguous statute is not subject to judicial construction. Am.

Cont’l Ins. Co. v. Steen, 151 Wn.2d 512, 518, 91 P.3d 864 (2004).

No party challenged the Court of Appeals’ conclusion that it was the State’s

burden to show that .340(1)(c)’s statute of limitations period had expired. The State did

not present this evidence. Rather, the Estate alleged that by mid- to late-2017, Timothy

had contacted a law firm to investigate whether he had a claim against the State for

allowing his abuse at Miller’s hands. The declarations from Jaqueline, Jimmy Acevedo,

and Timothy’s half-brother state that prior to 2017, Timothy never indicated he

connected his injuries to the State or believed he had any claim against the State. 7

6
An unpublished case from Division One employed a similar analysis. In Kirchoff, the Court of
Appeals held that a negligence claim accrues under RCW 4.16.340(1)(c) when the victim
subjectively understands the connection between the third-party’s conduct and resulting injuries.
No. 73666-3-I, slip op. at 10; see also M.L. v. Craigslist, Inc., No. C19-6153 BHS-TLF, 2022
WL 1210830 (W.D. Wash. Apr. 25, 2022) (court order) (adopting Kirchoff’s interpretation of
.340(1)(c)).
7
The Estate also argued that the “trial court erred” in its treatment of the declarations. Pet. for
Rev. at 26 & n.11. The trial court stated that it did not matter whether it considered the

16
No. 101477-5

The Estate filed this lawsuit in March 2020, less than three years from the time

Timothy apparently made a connection between the State’s actions and his injuries.

Accordingly, the Estate’s claims were timely filed. Therefore, we reverse the grant of

summary judgment for the State and remand the case for further proceedings.

The Estate also moved to strike portions of the State’s response to amici. The

State answered and the Estate submitted a reply. The motion was passed to the merits.

The Estate asks us to strike the State’s reference to a Department of Enterprise Services

study because it was not presented to the trial court. We decline to do so.

Appellate courts will consider “only evidence and issues called to the attention of

the trial court.” RAP 9.12. “The purpose of this limitation is to effectuate the rule that

the appellate court engages in the same inquiry as the trial court.” Wash. Fed’n of State

Emps., Council 28, AFL-CIO v. Office of Fin. Mgmt., 121 Wn.2d 152, 157, 849 P.2d

1201 (1993) (citing Southcenter View Condo. Owners Ass’n v. Condo. Builders, Inc., 47

Wn. App. 767, 736 P.2d 1075 (1986) (factual allegations raised in appellate brief did not

preclude summary judgment where unsupported in trial court record)). There is no

dispute the State did not submit the study to the trial court.

declarations—“the statement that he never mentioned [a claim against the State] creates an
inference of knowledge—that, therefore, he never mentioned it; therefore, he didn’t have it—I
think that’s stacking inference on inference, and I don’t think it satisfies, what I believe, is the
plaintiff’s burden here which is to show some amount of evidence that he only discovered his
claim . . . within three years.” Verbatim Rep. of Zoom Proc. (May 28, 2021) at 18-19. The trial
court tied its ruling on the declarations’ inferences about Timothy’s knowledge to its erroneous
ruling on the burden of proof. The Court of Appeals held the burden falls on the State to show
the statute of limitation expired, which the State has not satisfied. Therefore, the trial court did
not explicitly rule on the admissibility of the declarations. Whether an inference is sufficient
under .340(1)(c) is a question to be resolved in the trial court.

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No. 101477-5

The 2020 study was authored by the state risk manager and was “provided to

illustrate judicial, legislative, and economic facts as to the number of claims made against

the State and the results thereof. The study is directed to the Director of the Office of

Financial Management, as well as two sitting legislators . . . [and] is also part of the

legislative record relating to RCW 4.16.340.” State of Wash. Resp. to Pet’r’s Mot. To

Strike at 3. As the State points out, the study is not an allegation about the facts of the

underlying case—Timothy’s claim against the State—which would be inappropriate for

our review. Moreover, the State is responding to amici, and this court may, but usually

does not, reach arguments raised by amicus. State v. Duncan, 185 Wn.2d 430, 440, 374

P.3d 83 (2016).

Rather, the State’s use of the study is essentially a policy argument about how the

childhood sexual abuse statute has been interpreted in the past and its concern that a

different interpretation risks opening the floodgates of litigation. We have recognized

that courts can take notice of “‘legislative facts’—social, economic, and scientific facts

that ‘simply supply premises in the process of legal reasoning.’” Wyman v. Wallace, 94

Wn.2d 99, 102, 615 P.2d 452 (1980). Courts may take notice of scholarly words,

scientific studies, and social facts. Id. We deny the Estate’s motion to strike.

Finally, the Estate renews its request for costs on appeal. As in the Court of

Appeals below, the Estate provides no support for its request, but RAP 14.2 allows for an

award of costs to the substantially prevailing party on review. Wolf, 24 Wn. App. 2d at

313-14 (citing Hurley v. Port Blakely Tree Farms LP, 182 Wn. App. 753, 774-75, 332

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P.3d 469 (2014) (“[The party] makes no argument as to why attorney fees under RAP

18.1 are proper. Therefore, [the party] is entitled only to an award of allowable costs and

expenses under RAP 14.2 and 14.3.”)). Because we agree with the Estate’s interpretation

of RCW 4.16.340(1)(c)) and reverse the trial court’s grant of summary judgment to the

State, we grant the Estate’s request for appellate costs.

CONCLUSION

Under the plain language of RCW 4.16.340(1)(c), the period within which a

victim must bring a claim begins when the victim connects the wrongful conduct of a

third party to the victim’s injury. As the party arguing the affirmative defense that the

statute of limitations has run, the State bears the burden of proof. The State offered no

evidence that Timothy made any connection between the State’s actions and his injuries.

The Estate alleged evidence that Timothy did not make such a connection until 2017, and

it brought the current case in 2020—within RCW 4.16.340(1)(c)’s three-year period.

Accordingly, we reverse the trial court’s grant of summary judgment dismissing the

Estate’s claims and remand to the trial court for further proceedings consistent with this

opinion. We also deny the motion to strike and grant costs to the Estate.

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___________________________________

WE CONCUR:

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Bender, J.P.T.

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